Terms & Conditions of Trade
In this agreement, “the Surveyor” is All Points Surveys Pty Ltd ACN 113 889 722 ATF The Corfield Family Trust ATF ABN 79 355 176 847, its successors and assigns or any person acting on behalf of and with the authority of the Surveyor; “the Customer” is the individual, company or other entity requesting work to be carried out by the Surveyor; “Quote” means the estimate or preliminary agreement offered to the Customer; “Contract” means the agreement entered into and between the Customer and the Surveyor; “Agent” means anyone authorised by the Customer including but not limited to a project manager; ”Goods” mean surveying materials, surveys, house set outs and all associated paperwork provided to the Customer by the Surveyor; “Materials” mean pegs and other boundary associated materials; Site” means the address where the Surveyor’s work is to be carried out; and “Work” and/or “Project” means the services carried out by the Surveyor pursuant to these Terms and Conditions.
2. AGENT’S AUTHORITY
The Customer agrees that if an Agent has been appointed by the Customer then the Agent has full authority to act for the Customer in all aspects of the Project, including but not limited to approving variations.
3. DO AND CHARGE WORK
3.1 When the Customer has given the Surveyor a work order for the provision of services then the Customer shall pay the Surveyor’s hourly rate and the cost of Materials, consumables, disbursements and toll charges (if applicable).
3.2 The Surveyor’s ‘Do and Charge’ rate may change should the Surveyor encounter a significant obstacle requiring additional time or the hire of special equipment to complete the Work.
4.1 The Surveyor’s Quote
The Surveyor may give the Customer a Quote specifying the Work required in order to fulfill the Customer’s requirements and an estimate of the Surveyor’s charge. Work detailed in plans and specifications which are not included in Surveyor’s Quote and/or Contract will not be carried out by the Surveyor.
4.2 Acceptance by the Customer
4.2.1 Where the Surveyor has given the Customer a Quote the Surveyor need not commence the Work until the Quote has been accepted by the Customer. The Customer shall accept the Quote by instructing the Surveyor in writing via email or text to commence the Work accompanied by a work order number, if applicable.
4.2.2 Quotes are valid for thirty (30) days only, unless an extension has been authorised by the Surveyor.
4.2.3 A Quote is based on the assumption that all Work will be carried out during normal working hours, being 7am to 5pm Monday to Fridays. Requests by the Customer for Work outside normal working hours will incur additional costs. These costs are available on application to the Surveyor’s office.
4.3 Surveyor May Revise Quote
The Surveyor may amend an unsigned Quote after a period of thirty (30) days to take into account any rise or fall in the cost of performing the Work and the Surveyor shall notify the Customer of such amendment as soon as practicable thereafter. The Surveyor will not be obliged to commence the Work until such time as the Customer agrees to the amendment of the Quote.
5.1 The Customer shall indemnify the Surveyor from any additional cost incurred by the Surveyor should the Customer increase the scope of the Work to be provided.
5.2 The Customer agrees to indemnify the Surveyor from hold up and lost work time, costs and expenses due to variation work as requested by the Customer.
5.3 The Customer agrees to make no claim against the Surveyor for liquidated damages (if applicable) related to delays due to variations requested by the Customer.
6. SITE ACCESS
6.1 The Customer shall ensure that the Surveyor has clear and uninterrupted access to the Site until the Surveyor’s Work has been completed and the Surveyor has been paid in full.
6.2 In the event that delays occur in the Surveyor being provided access to the Site due to reasons beyond the Surveyor’s control, or that result in the Surveyor not being able to undertake the Work in the proposed timeframe, the Surveyor has the right to raise a claim to recover any expenses incurred due to such delays.
7. TRAVEL TO CUSTOMER’S SITE
Travel time of approximately fifty (50) kilometre radius outside of the Surveyor’s office will incur additional costs. Additional travel costs will be incorporated in the original quote provided by the Surveyor or mutually agreed by the Customer and Surveyor.
8. ADDITIONAL PLAN RESEARCH AND ANALYSIS
Depending on the age of the original survey plan, extensive research may need to be undertaken by the Surveyor to locate relevant plans from the Department of Natural Resources & Mines (DNR&M). The Customer shall indemnify the Surveyor for all costs, losses and expenses for all research work carried out including third party costs and applicable disbursements.
9. PAYMENT AND PAYMENT DEFAULT
9.1 Time for Payment
Unless otherwise agreed in writing, the Surveyor’s payment terms are seven (7) days from date of the Surveyor’s tax invoice and payment must be in full including GST, without deduction or set-off.
9.2 Form 16 Certificate
The Surveyor reserves the right to withhold issuing the Form 16 Certificate until the relevant invoice is paid in full. Upon confirmation of cleared funds, a digital copy of the Surveyor’s signed Form 16 Certificate will be sent to the Customer.
The Surveyor reserves the right to charge interest at a rate of two percent (2%) per annum above the commercial lending rate of the Surveyor’s bank calculated on a daily basis on any amount not paid within the time specified in the Surveyor’s tax invoice or payment claim.
The Customer must pay to the Surveyor any costs, expenses or losses incurred by the Surveyor as a result of the Customer’s failure to pay to the Surveyor all sums outstanding as owed by the Customer to the Surveyor including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
10. SCHEDULE OF WARRANTIES
To the extent required by the Australian Consumer Law (“the ACL”), the Surveyor warrants that the Work will be carried out in accordance with all relevant laws and legal requirements in an appropriate and skillful way, in accordance with the plans and specifications (where relevant) using Materials that are suitable for the purpose for which they are intended to be used and that, unless otherwise stated in the Contract, those Materials will be new.
11.1 Non-excludable Rights
The parties acknowledge that, under the ACL, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to the provision of goods and services which cannot be excluded, restricted or modified by the agreement (“Non-excludable Rights”).
11.2 Disclaimer of Liability
The Surveyor disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, supply, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-Excludable Rights. To the extent permitted by the ACL, the liability of the Surveyor for a breach of a Non-Excludable Right is limited, at the Surveyor’s option, to the supplying of the Materials and/or any Work again or payment of the cost of having the Materials and/or Work supplied again.
11.3 Indirect Losses
Notwithstanding any other provision of these Terms and Conditions, the Surveyor is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Customer for:
any increased costs or expenses;
any loss of profit, revenue, business, contracts or anticipated savings;
any loss or expense resulting from a claim by a third party; or
any special, indirect or consequential loss or damage of any nature whatsoever caused by a reasonable delay in completing the Work.
11.4 Force Majeure
The Surveyor will have no liability to the Customer in relation to any loss, damage or expense caused by the Surveyor’s failure to complete the Work as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, or any other matter beyond the Surveyor’s control.
12. RETENTION OF TITLE
Notwithstanding the delivery or installation of the Goods, title in any particular Goods shall remain with the Surveyor regardless of whether the Goods are on-sold by the Customer until the Customer has paid and discharged any and all monies owing pursuant to any invoice issued by the Surveyor for the Goods, including all applicable GST and other taxes, levies and duties.
Any payment made by or on behalf of the Customer which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge the Surveyor’s title in the Goods nor the Customer’s indebtedness to the Surveyor and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
The Customer acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices for the Goods is made pursuant to clause 12.1 and until that time the Customer is not entitled to sell the Goods but only in the ordinary course of business and the Customer shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery of the Goods to the Customer.
The Customer hereby irrevocably grants to the Surveyor, the right, at its sole discretion, to remove or repossess any Goods from the Customer and sell or dispose of them, and the Surveyor shall not be liable to the Customer or any person claiming through the Customer and the Surveyor shall be entitled to retain the proceeds of any Goods sold and apply same towards the Customer’s indebtedness to the Surveyor.
If the Customer commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then the Surveyor may, without prejudice to any other remedies it may have, repossess any Goods delivered to the Customer on any account which has not been paid in accordance with the Terms and Conditions herein and commence proceedings to recover the balance of any monies owing the Surveyor by the Customer.
13. PERSONAL PROPERTY SECURITIES ACT (PPSA)
13.1 In this clause, the following words have the respective meanings given to them in the PPSA: Financing Statement, Financing Change Statement, Proceeds, Register, Security Agreement, Security Interest and Verification Statement.
13.2 The Customer acknowledges and agrees:
that these Terms and Conditions constitute a Security Agreement that creates a Security Interest in all Goods (and Proceeds):
(i) previously supplied by the Surveyor to the Customer;
(ii) to be supplied in the future by the Surveyor to the Customer;
that the Security Interest created by these Terms and Conditions is a continuing Security Interest in all Goods (supplied now or in the future by the Surveyor to the Customer) and Proceeds, which will operate (despite any intervening payment or settlement of account) until the Surveyor has signed a release;
to waive its rights under section 157 of the PPSA and the following subsections of section 115 of the PPSA which will not apply to the Security Agreement created by these Terms and Conditions: 121(4), 130, 132(4), 135 and 143.
13.3 The Customer undertakes to:
keep all Goods free of any charge, lien or Security Interest except as created under these Terms and Conditions and not otherwise deal with the Goods in a way that may prejudice any rights of the Surveyor under these Terms and Conditions or the PPSA;
sign any further documents and provide any further information (which must be complete, accurate and up-to-date in all respects) that the Surveyor may require to:
(i) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(b) (i) or 13.3(b) (ii);
indemnify, and upon demand reimburse, the Surveyor for all fees (including actual legal fees on a solicitor/own client basis), costs, disbursements and expenses in:
(i) registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any Goods charged thereby; and
(ii) enforcing or attempting to enforce the Security Interest created by these Terms and Conditions.
not register, or allow to be registered, a Financing Statement or a Financing Change Statement in respect of the Goods or Proceeds in favour of a third party, without the prior written consent of the Surveyor; and
immediately advise the Surveyor of any material change in its business details (including, but not limited to, it’s trading name, address, telephone number) or business practices.
14. CANCELLATION AND POSTPONEMENT
The Customer shall reimburse the Surveyor for any costs, expenses or losses incurred by the Surveyor should the Customer cancel or postpone an agreed Project. The time for payment for such cancellation shall be seven (7) days from the Surveyor’s tax invoice.
Either party may terminate the Contract by giving forty-eight (48) hours’ notice in writing, by email or text. The Customer will indemnify the Surveyor from any costs, losses and expenses incurred should the Customer terminate the Contract. The time for payment shall be seven (7) days from the Surveyor’s tax invoice.
16.1 The Customer hereby authorises the Surveyor to collect, retain, record, use and disclose consumer and/or commercial information about the Customer, in accordance with the Privacy Act 1988 and the Privacy Principles outlined in the Privacy Amendment Act 2012, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Surveyor, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
16.2 The Surveyor may give information about the Customer to a credit reporting agency for the purposes of obtaining consumer credit reports and/or lodging consumer defaults on the Customer’s credit file. This information may be given before, during or after the provision of credit to the Customer and will be in accordance with the Privacy Act 1988, the Privacy Amendment Act 2012 and any subsequent amendments.
17. PAYMENT CLAIM
On completion of the Work (and where applicable) the Surveyor shall make a payment claim in accordance with The Building and Construction Industry Payments Act 2004 (Qld) (“the Act”). The Customer must respond appropriately and within the time specified in the Act.
18. ARBITRATION AND MEDIATION
Without prejudice to either party’s rights under the Building and Construction Industry Payments Act 2004 (Qld), either party may refer any dispute under, or arising out of, this Agreement to the Institute of Arbitrators & Mediators Australia, for resolution under the Rules of the Construction Industry Dispute Resolution Scheme. Each case will first be referred to a Conciliator appointed by the Institute unless each party wishes to proceed directly to arbitration. If the conciliation is not satisfactorily concluded within thirty (30) days or if the parties want to proceed directly to arbitration, the Institute will appoint an Arbitrator to make a final and binding award.
All plans, reports and correspondence are copyright. Reproduction in part or in full without the written permission of the Surveyor is prohibited. Consent to reproduction is deemed to have been granted to the Customer for the specified purpose of the Project only and once payment has been received. Title to the plans and reports provided does not pass to the Customer until payment in full has been received by the Surveyor.
Failure by the Surveyor to enforce or delay in enforcing any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision unless acknowledged and agreed by the Surveyor in writing.
21. AMENDMENT TO THESE TERMS AND CONDITIONS
The Surveyor reserves the right to vary these Terms and Conditions by giving seven (7) days’ notice in writing to the Customer. Any subsequent order for Work or new Contract will represent the Customer’s agreement to these Terms and Conditions as amended.
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down, then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
23. GOVERNING LAW AND JURISDICTION
These Terms and Conditions are governed by the laws of the State of Queensland and the laws of the Commonwealth of Australia which are in force in Queensland. All disputes arising between the Customer and the Surveyor will be submitted to a court of competent jurisdiction in Queensland selected by the Surveyor and such court shall possess territorial jurisdiction to hear and determine such proceedings.