Terms and Conditions
- All quotes are subject to the standard terms and conditions set out in this document.
- Height Safety Engineers does not agree to liquidation damages for works less than $50,000.00.
- No retention agreements will be entered into for projects valued less than $50,000.00.
1.0 – Definitions
1.1 – “HSE” means Elbon Consulting Services Pty Ltd trading as Height Safety Engineers, its successors and assigns or any person acting on behalf of and with the authority of Elbon Consulting Services Pty Ltd training as Height Safety Engineers.
1.2 – “Client” means the person/s buying the goods as specified in any invoice, document or purchase order, and if there is more than one client is a reference to each client jointly and severally.
1.3 – “Goods” means all goods or services supplied by HSE to the client at the client’s request from time to time (where the context so permits the terms “goods” and “services” shall be interchangeable for the other).
1.4 – “Price” means the amount payable for the goods as agreed between the client and HSE in accordance with Clause 4, below.
2.0 – Acceptance
2.1 – The client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the client places an order for or accepts delivery of the goods.
2.2 – These terms and conditions may only be amended with HSE’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the client and HSE.
3.0 – Change in Control
3.1 – The client shall give HSE not less than 14 days prior written notice of any proposed change of ownership of the client and/or any other change in the client’s details (including but not limited to changes in the client’s name, address, contact phone or fax number/s or business practise). The client shall be liable for any loss incurred by HSE as a result of the client’s failure to comply with this clause.
4.0 – Price and Payment
4.1 – At HSE’s sole discretion, the price shall be either:
- as indicated on any invoice provided by HSE to the client; or
- HSE’s quoted price (subject to Clause 4.2) which will be valid for the period stated in the quotation or otherwise a period of 30 days.
4.2 – HSE reserves the right to change the price:
- if a variation to the goods which are to be supplied is requested; or
- if a variation to the services originally scheduled (including any applicable plans or specifications) is requested; or
- where additional services are required due to the discovery of hidden or unidentifiable difficulties (including but not limited to poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, change of design, hidden pipes and wiring in walls, etc) which are only discovered on commencement of the services; or
- in the event of increases to HSE’s cost of labour or which are HSE’s control.
4.3 – At HSE’s sole discretion a deposit of 20 per cent of the price may be required.
4.4 – Time for payment of the goods being of the essence, the price will be payable by the client on the date/s determined by HSE which may be:
- upon delivery of the goods to the client;
- by way of installments/progress payments in accordance with HSE’s payment schedule;
- 30 days following the end of the month in which a statement is posted to the client’s address or address for notices;
- the date specified on any invoice or other form as being the date for payment; or
- failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the client by HSE.
4.5 – Payment may be made by cash, cheque, bank cheque, electronic/online banking, credit card (plus a surcharge of up to 2.5% of the price), or by any method as agreed between the client and HSE.
4.6 – Unless otherwise stated the price does not include goods and services tax (GST). In addition to the price, the client must pay to HSE an amount equal to any GST HSE must pay for any supply by HSE under this or any other agreement of sale of the goods. The client must pay GST, without any deduction or offset of any other amounts, at the same time and on the same basis as the client pays the price. In addition, the client must pay any other taxes and duties that may be applicable in addition to the price except where they are expressly included in the price.
5.0 – Delivery of Goods
5.1 – Delivery of the goods is taken to occur at the time that:
- the client or the client’s nominated carrier takes possess of the goods at HSE’s address; or
- HSE (or HSE’s nominated carrier) delivers the goods to the client’s nominated address even if the client is not present at the address.
5.2 – At HSE’s sole discretion the cost of delivery is included in the price.
5.3 – HSE may deliver the goods in separate installments. Each separate installment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.4 – Subject to Clause 5.5 it is HSE’s responsibility to ensure that the services start as soon as it is reasonably possible.
5.5 – The services’s commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that HSE claims an extension of time (by giving the client written notice) where completion is delayed by an event beyond HSE’s control, including but not limited to failure by the client to:
- make a selection; or
- have the site ready for services; or
- notify HSE the site is ready.
5.6 – Any time or date give by HSE to the client is an estimate only. The client must still accept delivery of the goods even if late and HSE will not be liable for any loss or damage incurred by the client as a result of the delivery being late.
6.0 – Risk
6.1 – Risk of damage to or loss of the goods passes to the client on delivery and the client must insure the goods on or before delivery.
6.2 – If any of the goods are damaged or destroyed following delivery but prior to ownership passing to the client, HSE is entitled to receive all insurance proceeds payable for the goods. The production of these terms and conditions by HSE is sufficient evidence of HSE’s right to receive the insurance proceeds without the need for any person dealing with HSE to make further inquiries.
6.3 – If the client requests HSE to leave goods outside HSE’s premises for collection or to deliver the goods to an unattended location then such goods shall be left at the client’s sole risk.
6.4 – The client warrants that any structures to which the goods are to be affixed are able to withstand the installation of the goods and that any electrical connections (including but not limited to meter boxes, main switches, circuit breakers and electrical cables)are of suitable capacity to handle the goods once installed. If for any reason (including the discovery asbestos, defective or unsafe wiring or dangerous access to roofing) that HSE, its employees or contractors reasonably form the opinion that the client’s premises is not safe for the installation of goods to proceed then HSE shall be entitled to delay the installation of hte goods (in accordance with Clause 5.5 above) until HSE is satisfied that it is safe for the installation to proceed.
6.5 – Where HSE gives advice or recommendations to the client, or the client’s agent, with specific instructions regarding the use of the goods and such advice or recommendations are not acted upon then HSE shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the services.
7.0 – Access
7.1 – The client shall ensure that HSE has clear and free access to the work site at all times to enable them to undertake the services. HSE shall not be liable for any loss or damage to the site (including without limitation damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of HSE.
8.0 – Title
8.1 – HSE and the client agree that ownership of the goods shall not pass until:
- the client has paid HSE all amounts owning to HSE; and
- the client has met all its other obligations to HSE.
8.2 – Receipt by HSE 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.
8.3 – It is further agreed that:
- until ownership of the goods passes to the client in accordance with Clause 8.1 that the client is only a bailee of the goods and must return the goods to HSE on request.
- the client holds the benefit of the client’s insurance of the goods on trust for HSE and must pay to HSE the proceeds of any insurance in the event of the goods being lost, damaged or destroyed.
- 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 HSE and must pay or deliver the proceeds to HSE 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 HSE and must sell, dispose of or return the resulting product to HSE as it so directs.
- the client irrevocably authorises HSE to enter any premises where HSE believes the goods are kept and recover possession of the goods.
- HSE many 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 nor grant nor otherwise give away any interest in the goods while they remain the property of HSE.
- HSE many commence proceedings to recover the price of the goods sold notwithstanding that ownership of the goods has not passed to the client.
9.0 – Personal Property Securities Act, 2009 (“PPSA”)
9.1 – In this clause financing statement, financing change statement, security agreement and security interest has the meaning given to it by the PPSA.
9.2 – Upon assenting to these terms and conditions in writing the client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all goods that have previously been supplied and that will be supplied in the future by HSE to the client.
9.3 – The client undertakes to:
- promptly sign any further documents and/or provide any further information (such as information to be complete, accurate and up to date in all respects) which HSE may reasonably require to:
- register a financing statement or financing change statement in relation to a security interest on the Person Property Securities Register;
- register any other document required to be registered by the PPSA; or
- correct any defect in a statement referred to in the above.
- indemnify, and upon demand reimburse, HSE for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any goods charged thereby;
- not register a financing change statement in respect in respect of a security interest without the prior written consent of HSE;
- not register, or permit to be registered, a financing statement or financing change statement in relation to the goods in favour of a third party without the prior written consent of HSE;
- immediately advise HSE of any material change in its business practices of selling the goods which would result in a change in the nature of proceeds derived from such sales.
9.4 – HSE and the client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 – The client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 – The client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 – Unless otherwise agreed to in writing by HSE, the client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 – The client must unconditionally ratify any actions taken by HSE under the clauses 9.3 to 9.5.
9.9 – Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10.0 – Security and Charge
10.1 – In consideration of HSE agreeing to supply the goods, the client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the client either now or in the future to secure the performance by the client of its obligations under these terms and conditions (including but not limited to the payment of any money).
10.2 – The client indemnifies HSE from and against all HSE’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HSE’s rights under this clause.
10.3 – The client irrevocably appoints HSE and each director of HSE as the client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this Clause 10 including but not limited to signing any document on the client’s behalf.
11.0 – Defects, Warranties and Returns, Competition and Consumer Act, 2010 (CCA)
11.1 – The client must inspect the goods on delivery and must within 30 days of delivery notify HSE in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The client must notify any other alleged defect in the goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the client must allow HSE to inspect the goods.
11.2 – Under applicable state, territory and commonwealth law (including without limitation the CCA), certain statutory implied guarantees and warranties (including without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
11.3 – HSE acknowledges that nothing in these terms and conditions purports to modify or exclude Non-Excluded Guarantees.
11.4 – Except as expressly set out in these terms and conditions or in respect of Non-Excluded Guarantees, HSE makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the goods.
11.5 HSE’s liability in respect of these warranties is limited to the fullest extent permitted by law.
11.6 – If the client is a consumer within the meaning of the CCA, HSE’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.7 – If HSE is required to replace the goods under this clause or the CCA, but is unable to do so, HSE may refund any money the client has paid for the goods.
11.8 – If the client is not a consumer within the meaning of the CCA, HSE’s liability for any defect or damage in the goods is:
- limited to the value of any express warranty or warranty card provided to the client by HSE at HSE’s sole discretion;
- limited to any warranty to which HSE is entitled, if HSE did not manufacture the goods;
- otherwise negated absolutely.
11.9 – Subject to Clause 11, returns will only be accepted provided that:
- the client has complied with the provisions of Clause 11.1; and
- HSE has agreed that the goods are defective; and
- the goods are returned within a reasonable time at the client’s cost (if that cost is not significant); and
- the goods are returned in as close a condition to that in which they were delivered as possible.
11.10 – Notwithstanding Clauses 11.1 to 11.9 but subject to the CCA, HSE shall not be liable for any defect or damage which may be caused or partly caused by by or arise as a result of:
- the client failing to properly maintain or store any goods;
- the client using the goods for any purpose other than that for which they were designed;
- the client continuing the use of any goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- the client failing to follow any instructions or guidelines provided by HSE;
- fair wear and tear, any accident or act of God.
11.11 – Notwithstanding anything contained in this clause if HSE is required by law to accept a return then HSE will only accept a return on the conditions imposed by that law.
12.0 – Intellectual Property
12.1 – Where HSE has designed, drawn or developed goods for the client, then the copyright in any designs and drawings and documents shall remain the property of HSE.
12.2 – The client warrants that all designs, specifications or instructions given to HSE will not cause HSE to infringe any patent, registered design or trademark in the execution of the client’s order and the client agrees to indemnify HSE against any action taken by a third party against HSE in respect of any such infringement.
13.0 – Default and 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 2.5% per calendar month (and at HSE’s sole discretion such interest shall compound monthly at such a rate) as well as before any judgement.
13.2 – If the client owes HSE any money the client shall indemnify HSE from and against all costs and disbursements incurred by HSE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HSE’s contract default fee and bank dishonour fees).
13.3 – Without prejudice to any other remedies HSE may have, if at any time the client is in breach of any obligation (including those relating to payment) under these terms and conditions HSE may suspend or terminate the supply of goods to the client.
13.4 – HSE will not be liable to the client for any loss or damage the client suffers because HSE has exercised its rights under this clause.
13.5 – Without prejudice to HSE’s other remedies at law HSE shall be entitled to cancel all or any part of any order of the client which remains unfulfilled and all amounts owing to HSE shall, whether or not due for payment, become immediately payable if:
- any money payable to HSE becomes overdue, or in HSE’s opinion the client will be unable to make payment when it falls due;
- 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the client or any asset of the client.
14.0 – Compliance with Laws
14.1 – The client and HSE shall comply with all provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the services.
14.2 – The client shall obtain (at the expense of the client) all licences and approvals that may be required for the services.
14.3 – The client agrees that the site will comply with any work health and safety laws (WHS) relating to building/construction sites and any other relevant safety standards or legislation, particularly those in relation to asbestos/hazardous materials and the safe removal and disposal of same.
15.0 – Cancellation
15.1 – HSE 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 HSE shall repay to the client any money paid by the client for the goods. HSE shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 – In the event the clients cancels delivery of goods the client shall be liable for any and all loss incurred (whether direct or indirect) by HSE as a direct result of the cancellation (including but not limited to any loss off profits).
15.3 – Cancellation of orders for goods made to the client’s specifications or not non-stocklist items will definitely not be accepted once production has commenced or an order has been placed.
16.0 – Privacy Act, 1988
16.1 – The client agrees for HSE to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, date of birth, occupation, previous credit applications, credit history) about the client in relation to credit provided by HSE.
16.2 – The client agrees that HSE may exchange information about the client with those credit providers and with related body corporates for the following purposes:
- to assess an application by the client; and/or
- to notify other credit providers of a default by the client; and/or
- 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
- to assess the creditworthiness of the client including the client’s repayment history in the preceding two (2) years.
16.3 – The client consents to HSE being given a consumer credit report to collect overdue payment on commercial credit.
16.4 – The client agrees that personal credit information provided may be used and retained by HSE for the following purposes (and for other agreed purposes or required by):
- the provision of goods; and/or
- analysing, verifying and/or checking the client’s credit, payment and/or status in relation to the provision of goods; and/or
- enabling the collection of amounts outstanding in relation to the goods.
16.5 – HSE may give information about the client to a CRB for the following purposes:
- to obtain a consumer credit report;
- allow the CRB to create or maintain a credit information file about the client including credit history.
16.6 – The information given to the CRB may include:
- personal information as outlined in 16.1 above;
- name of the credit provider and that HSE is a current credit provider to the client;
- whether the credit provider is a licensee;
- type of consumer credit;
- details concerning the client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
- advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than 60 days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the client no longer has any overdue accounts and HSE has been paid or otherwise discharged and all details that discharge (e.g. dates of payments);
- information that in the opinion of HSE the client has committed a serious credit infringement.
- advice that the amount of the client’s overdue payment is equal to or more than $150.000.
16.7 – The client shall have the right to request (by email) from HSE:
- a copy of the information about the client retained by HSE and the right to request that HSE correct any incorrect information; and
- that HSE does not disclose any personal information about the client for the purpose of direct marketing.
16.8 – HSE will destroy person information upon the client’s request (by email) of it is no longer required unless it is required in order to fulfill the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
16.9 – The client can make a privacy complaint by contacting HSE by email. HSE will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within 30 days of receipt of the complaint. In the event that the client is not satisfied with the resolution provided the client can make a complaint to the Information Commissioner at www.oaic.gov.au.
17.0 – Other Applicable Legislation
17.1 – At HSE’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, 2002 (Victoria), Building and Construction Industry Security of Payments Act, 1999 (New South Wales), Construction Contracts ACt, 2004 (Western Australia), Building and Construction Industry Payments Act, 2004 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory), Building and Construction Industry Security of Payments Act, 2009 (Tasmania), Building and Construction Industry Security of Payments Act, 2009 (South Australia) and Building and Construction Industry (Security of Payment) Act, 2009 (Australian Capital Territory) may apply.
17.2 – Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of any of the Acts listed in Clause 17.1 each as applicable, except to the extent permitted by the Act where applicable.
18.0 – General
18.1 – The failure by HSE to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision nor shall it affect HSE’s right to subsequently enforce that provision. 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.
18.2 – These terms and conditions and any contract to which they apply shall be governed by the lawns of the state of New South Wales in which HSE has its principal place of business and are subject to the jurisdiction of the Campbelltown Courts in that state.
18.3 – Subject to Clause 11 HSE 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 HSE of these terms and conditions (alternatively HSE’s liability shall be limited to damages which under now circumstance shall exceed the price of the goods).
18.4 – 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 HSE nor to withhold any payment of any invoice because part of that invoice is in dispute.
18.5 – HSE may license or sub-contract all or any part of its rights and obligations without the client’s consent.
18.6 – The client agrees that HSE may amend these terms and conditions at any time. If HSE makes a change to these terms and conditions then that change will take effect from the date on which HSE notifies the client of such change. The client will then be taken to have accepted such changes if the client makes a further request for HSE to provide goods to the client.
18.7 – Neither party shall be liable for any default due to act of God, war, terrorism, stike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.8 – The client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and legal obligations on it.