1. Application of Terms of Trade
1.1 These terms apply to all trade between you, the customer and BRELECAIR. These terms are effective from the above date until these terms of trade are replaced by another document. Unless the context requires otherwise, the following definitions shall apply to these terms of trade.
2. Definitions
2.1 BRELECAIR means the contractor and any of its related companies who have supplied goods or services. This also includes the successors and assignees of those companies.
2.2 Customer/ Client means the person/s ordering the Works as specified in any invoice, document or order. These terms of trade include the Customer's trustees, executors [if an individual or successors], permitted assigns, and/or administrators.
2.3 Works means all Works or Materials provided by the BRELECAIR to the Client at the Client's request from time to time (where the context so permits the terms 'Works' or 'Materials' shall be interchangeable for the other).
3. Acceptance
3.1 The Customer is considered to have accepted these terms of trade if a work order is placed and/or a quote is accepted. BRELECAIR is unable to commence work prior to terms of trade being accepted.
3.2 These terms of trade cannot be amended without BRELECAIR’s written consent. These terms of trade prevail to the extent of any inconsistency with any other document or agreement between the Customer and BRELECAIR.
4. Payment
4.1 The Price shall be either (a) as indicated on invoices provided by BRELECAIR to the Customer in respect of Works provided; or (b) BRELECAIR' quoted Price (subject to clause 4.2) which is binding upon BRELECAIR provided the quotation has been accepted by the Customer within sixty (14) days; or (c) outlined in a maintenance contract mutually agreed to by BRELECAIR and the Customer (subject to clause 4.2)
4.2 BRELECAIR reserves the right to modify the Price (a) if a variation to the Works originally scheduled (including applicable designs, plans, and/or specifications) is requested; or (b) where additional Works are required due to the discovery on commencement of and/or during the Works of hidden or unidentifiable difficulties, including but not limited to site access limitations, poor weather conditions, obscured site defects, health hazards, safety considerations, prerequisite work by a third part not being completed; or (c) in the event of unforeseen increases to BRELECAIR in the cost of labour or Materials, which are beyond the control of BRELECAIR.
4.3 A deposit of 30% is required prior to Works beginning for Works totaling equal to or in excess of $7,000, and/or a deposit may be required for works of lesser value at the discretion of BRELECAIR.
4.4 BRELECAIR may request partial Payment for Works completed or Materials purchased if Works are delayed significantly or terminated by either the Customer or extenuating circumstances prior to Works completion.
4.5 The Price (in full or remaining after deposit received) will be payable by the Customer no later than the date specified on the invoice supplied by BRELECAIR. If the Customer fails to pay the full amount due, on or before the due date, BRELECAIR shall be entitled to charge the Customer late payment fees and/or interest, as outlined on the provided invoice.
4.6 Without prejudice to any other remedies BRELECAIR may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions BRELECAIR may suspend or terminate the provision of Works to the Customer. BRELECAIR will not be liable to the Customer for any loss or damage the Client suffers if BRELECAIR has exercised its rights under this clause.
5. Provision of Works
5.1 Subject to clause 5.2, it is BRELECAIR' responsibility to ensure that the Works start as soon as it is reasonably possible.
5.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that BRELECAIR' claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond BRELECAIR' control, including but not limited to any failure by the Client to (a) make a selection; or (b) have the site ready for the Works; or (c) notify the Contractor that the site is ready.
5.3 BRELECAIR may provide the Works by separate installments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.4 Excluding formal written agreements, any time specified by BRELECAIR for provision of the Works is an estimate only and BRELECAIR will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Works to be provided at the time and place as was arranged between both parties. In the event that BRELECAIR is unable to provide the Works as agreed solely due to any action or inaction of the Client then BRELECAIR shall be entitled to charge a reasonable fee for re-providing the Works at a later time and date.
5.5 BRELECAIR shall rely on the accuracy of any plans, specifications and other information provided by the Customer when determining time and price estimates for the provision of Works. In the event that any of this information provided by the Customer is inaccurate, BRELECAIR accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
6. Risk
6.1 BRELECAIR shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.
6.2 The Customer warrants that to the best of their knowledge the premises are safe for work. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roofing), BRELECAIR reasonably forms the opinion that the Customer's premises is not safe for the Works to proceed then BRELECAIR shall be entitled to delay the Works (in accordance with the provisions of clause 4.2 above) until BRELECAIR is satisfied that it is safe for the Works to proceed.
6.3 The Customer acknowledges that BRELECAIR is only responsible for Materials which are supplied by BRELECAIR, and in the event that other components/goods subsequently fail, BRELECAIR assumes no responsibility for any loss or damage to the Materials caused by such event.
6.4 The Customer acknowledges that in the event that BRELECAIR is requested to perform a temporary repair, the Customer accepts that the repair is temporary and BRELECAIR offers no guarantee against reoccurrence, effectiveness or further damage.
6.5 Where BRELECAIR gives advice or recommendations to the Customer (or the Customer's agent) in regards to the Works, including specific instructions regarding the repair or use of the Materials/equipment and such advice or recommendations are not acted upon then BRELECAIR shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the works, which will be completed at the risk and liability of the Customer.
7. Care of Materials
7.1 BRELECAIR may at our discretion notify the Customer that we require to store at the worksite Materials, fittings, or plant and tools required for the Works, in which event the Customer shall supply BRELECAIR a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Customer's responsibility.
8. Access
8.1 The Customer shall ensure that BRELECAIR has clear and free access to the nominated site at all times discussed to enable them to undertake the Works. BRELECAIR shall not be liable for any loss or damage to the site unless due to the negligence of BRELECAIR.
9. Compliance with Laws
9.1 The Customer and BRELECAIR 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, including any work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
9.2 The Customer shall obtain (at their own expense) all licenses and approvals that may be required for the Works.
9.3 The Works will be tested to ensure that the installation is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All cabling work will comply with the Australian and New Zealand Wiring Standards.
10. Title
10.1 BRELECAIR and the Customer agree that the Customer's obligations to BRELECAIR for the provision the Works shall not cease (and ownership of the Materials shall not pass) until: (a) the Customer has paid BRELECAIR all amounts owing; and (b) the Customer has met all other obligations due by the Customer to BRELECAIR in respect of all contracts between BRELECAIR and the Customer.
10.2 Receipt by BRELECAIR 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 BRELECAIR' ownership or rights in respect of the Materials, and this contract, shall continue.
10.3 It is further agreed that, until ownership of the Materials passes to the Customer in accordance with clause 10.1: (a) the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to BRELECAIR on request; and (b) the Customer holds the benefit of the Customer's insurance of the Materials on trust for BRELECAIR and must pay to BRELECAIR the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
11. Cancelation
11.1 BRELECAIR may cancel any contract to which these terms of trade apply, or cancel provision of Works at any time before the Works have commenced or Material are delivered by giving written notice to the Customer. On giving such notice BRELECAIR shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to BRELECAIR for Materials already produced. BRELECAIR shall not be liable for any loss or damage whatsoever arising from such cancellation.
11.2 In the event that the Customer cancels this contract, or the provision of Works by BRELECAIR, the Customer shall be liable for any and all loss incurred by BRELECAIR as a direct result of the cancellation.
11.3 Cancellation of orders for Materials made to the Customer's specifications, or for non-standard items, will not be accepted once production has commenced or an order has been placed.
12. General
12.1 The failure by BRELECAIR to enforce any provision of these terms of trade shall not be treated as a waiver of that provision, nor shall it affect BRELECAIR's right to subsequently enforce that provision. If any provision of these terms of trade shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
12.2 These terms of trade, and any contract to which they apply, shall be governed by the laws of Queensland, the State in which BRELECAIR has its principal place of business.
12.3 The Customer agrees that BRELECAIR may amend these terms and conditions at any time. If BRELECAIR makes a change to these terms and conditions, then that change will take effect from the date on which BRELECAIR notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for BRELECAIR to provide any Works.
12.4 Neither party shall be liable for any default due to any force majeure, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
12.5 The Customer warrants that it has the power to enter into this contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this contract creates binding and valid legal obligations on it.