Terms of Trade

Definitions
1. “Splendid” means Splendid Concreting & Constructions Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Splendid Concreting & Constructions Pty Ltd.
2. “Client” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
3. “Works” means all Works or Materials provided by Splendid 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).
4. “Price” means the Price payable for the Works as agreed between Splendid and the Client in accordance with clause 4 below.

Acceptance
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 provision of the Works.
2. These terms and conditions may only be amended with Splendid’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Splendid.

Change in Control
1. The Client shall give Splendid not less than fourteen (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 practice). The Client shall be liable for any loss incurred by Splendid as a result of the Client’s failure to comply with this clause.

Price and Payment
1. At Splendid’s sole discretion the Price shall be either:
  1. as indicated on invoices provided by Splendid to the Client in respect of Works supplied; or
  2. the Price as at the date of provision of the Works according to Splendid’s current price list; or
  3. Splendid’s quoted Price (subject to clause 4.2) which shall be binding upon Splendid provided that the Client shall accept Splendid’s quotation in writing within forty-five (45) days.
2. Splendid reserves the right to change the Price:
  1. if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
  2. where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, obscured site defects, safety considerations, or prerequisite work by any third party not being completed, etc.) which are only discovered on commencement of the Works; or
  3. in the event of increases to Splendid in the cost of labour or Materials, which are beyond Splendid’s control.
3. At Splendid’s sole discretion, a non-refundable deposit may be required prior to commencement of the Works.
4. Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Splendid, which may be:
  1. on completion of the Works; or
  2. by way of progress payments in accordance with Splendid’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or
  3. thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
  4. the date specified on any invoice or other form as being the date for payment; or
  5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Splendid.
5. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Splendid.
6. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Splendid an amount equal to any GST Splendid must pay for any provision of Works by Splendid under this or any other agreement. The Client must pay GST, without deduction or set off 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.

Provision of the Works
1. Subject to clause 5.2, it is Splendid’s responsibility to ensure that the Works start as soon as it is reasonably possible.
2. The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Splendid claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Splendid’s control, including but not limited to any failure by the Client to:
  1. make a selection; or
  2. have the site ready for the Works; or
  3. notify Splendid that the site is ready.
3. Splendid may provide the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
4. Any time or date given by Splendid to the Client is an estimate only. Splendid shall not be liable for any loss or damage whatsoever due to failure by Splendid to provide the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of Splendid.

Access
1. The Client shall ensure that Splendid has clear and free access to the site at all times to enable them to undertake the Works. Splendid 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 Splendid.

Risk
1. Splendid 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 Client.
2. Splendid may at its discretion notify the Client that it requires to store at the site Materials, fittings and appliances, or plant and tools required for the Works, in which event the Client shall supply Splendid 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 Client’s responsibility.
3. The Client acknowledges that variations of colour and texture are inherent in concrete. Splendid shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between different batches of Materials.
4. Further to clause 7.3 above, the Client acknowledges that exposed aggregate may have slight inconsistencies. It is a decorative finish which interferes with the normal setting of the concrete surface. Variances can occur because of the concrete slump, weather (extreme heat, rain and or wind) and irregular delivery of mix by Splendid. It is common for some small surface stones to fall out during the washing off period, and slurry patches may appear. This is not a defect of either the Materials themselves, nor of Splendid’s workmanship.
5. Detailed drawings of any services that will be embedded in the concrete are to be provided to Splendid prior to commencement of the Works. Whilst all due care will be taken no liability will be accepted by Splendid for damage to the services or any other element embedded in the concrete.
6. The Client accepts and acknowledges that:
  1. all asphalt and/or concrete surfaces will require a minimum fall off of one percent (1%) to prevent water pooling and/or flooding; and
  2. at Splendid’s discretion, cuts will be made in the concrete to relieve stress; and
  3. if Splendid is asked to match existing surfaces, variations between existing surfaces and new surfaces will be apparent due to the effects of age and weathering; and
  4. where Splendid is requested to perform remedial work on damaged structures, evidence of repairs may be apparent after the completion of the Works.
7. Where Splendid gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the site for the laying of concrete slabs, foundations or similar work, and such advice or recommendations are not acted upon, Splendid shall require the Client or their agent to authorise commencement of the Works in writing. Splendid shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
8. Splendid gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the Works such as:
  1. hairline cracking of paving and grout; or
  2. damage caused by contact with chemicals, solvents, oils or any other substances; or
  3. the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.
9. The Client shall supply an area suitable for washing out Splendid’s equipment and for depositing all unused concrete and slurry.
10. Splendid shall not be liable for any defect in the Works if the Client does not comply with Splendid’s following recommendations:
  1. water the concrete periodically to limit the risk of possible cracking, due to weather conditions;
  2. no foot traffic on the concrete for a minimum of forty-eight (48) hours but preferably seven (7) days following placement of the concrete;
  3. no vehicles on the concrete for twenty-eight (28) days from the date of placement of the concrete;
  4. no heavy furniture or other object is to be placed on the concrete area for a minimum of twenty-four (24) hours.
11. The Client acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of re pair or replacement shall be borne by the Client.
12. Where the Client has supplied products for Splendid to complete the Works, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in those products. Splendid shall not be responsible for any defects in the Works, any loss or damage to Materials and/or the products (or any part thereof), howsoever arising from the use of products supplied by the Client.

Measurement of Concreting Works
1. At the completion of the Works the Client (or the representative of the Client) shall be in attendance and the Works shall then be duly measured. In the absence of either the Client, or their representative, Splendid shall carry out the necessary measurements and forward to the Client their calculations. If the Client does not object to the calculations within seven (7) days of receipt of the same then it shall be deemed acceptance of the same and the Works completed.

Title
1. The Client acknowledges and agrees that the Client’s obligations to Splendid for the provision the Works shall not cease until:
  1. the Client has paid Splendid all amounts owing for the particular Works; and
  2. the Client has met all other obligations due by the Client to Splendid in respect of all contracts between Splendid and the Client.
2. Receipt by Splendid 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 Splendid ownership or rights in respect of the Works, and this agreement, shall continue.
3. It is further agreed that:
  1. until ownership of the Works passes to the Client in accordance with clause 9.1, that the Client is only a bailee of the Materials, and unless they have become fixtures must return them to Splendid on request; and
  2. unless the Materials have become fixtures, the Client irrevocably authorises Splendid to enter any premises where Splendid believes they are kept and recover possession thereof.
  3. Splendid may commence proceedings to recover the Price, notwithstanding that ownership of the Works has not passed to the Client.

Personal Property Securities Act 2009 (“PPSA”)
1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
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 Materials and collateral (accounts) – being a monetary obligation of the Client to Splendid for Works – that have previously been provided and that will be provided in the future by Splendid to the Client.
3. The Client undertakes to:
  1. promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Splendid may reasonably require to:
    1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    2. register any other document required to be registered by the PPSA; or
    3. correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
  2. indemnify, and upon demand reimburse, Splendid 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 registration made thereby;
  3. not register a financing change statement in respect of a security interest without the prior written consent of Splendid;
  4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral in favour of a third party without the prior written consent of Splendid; and
  5. immediately advise Splendid of any material change in its business practices.
4. Splendid 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.
5. The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
6. The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7. Unless otherwise agreed to in writing by Splendid, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
8. The Client shall unconditionally ratify any actions taken by Splendid under clauses 10.3 to 10.5.
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.

Security and Charge
1. In consideration of Splendid agreeing to provide the Works, 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).
2. The Client indemnifies Splendid from and against all Splendid’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Splendid’s rights under this clause.
3. The Client irrevocably appoints Splendid and each director of Splendid as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.

Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
1. The Client must inspect the Works on completion and must within seven (7) days of such time notify Splendid in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Splendid to inspect or review the Works provided.
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).
3. Splendid acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Splendid makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Works. Splendid’s liability in respect of these warranties is limited to the fullest extent permitted by law.
5. If the Client is a consumer within the meaning of the CCA, Splendid’s liability is limited to the extent permitted by section 64A of Schedule 2.
6. If Splendid is required to rectify, re-provide, or pay the cost of re-providing the Works under this clause or the CCA, but is unable to do so, then Splendid may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works which have been provided to the Client which were not defective.
7. Notwithstanding clauses 12.1 to 12.6 but subject to the CCA, Splendid shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
  1. the Client failing to properly maintain or store any Works;
  2. the Client using the Works for any purpose other than that for which they were designed;
  3. the Client continuing to use any Works after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
  4. interference with the Works by the Client or any third party without Splendid’s prior approval;
  5. the Client failing to follow any instructions or guidelines provided by Splendid;
  6. fair wear and tear, any accident, or act of God.

Intellectual Property
1. Where Splendid has designed, drawn, written plans or a schedule of Works, or created any Materials for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and Materials shall remain vested in Splendid, and shall only be used by the Client at Splendid’s discretion.
2. The Client warrants that all designs, specifications or instructions given to Splendid will not cause Splendid to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Splendid against any action taken by a third party against Splendid in respect of any such infringement.
3. The Client agrees that Splendid may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or Materials which Splendid has created for the Client, and any digital media of the Works provided by Splendid to the Client.

Default and Consequences of Default
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 a half percent (2.5%) per calendar month (and at Splendid’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Client owes Splendid any money the Client shall indemnify Splendid from and against all costs and disbursements incurred by Splendid in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Splendid’s contract default fee, and bank dishonour fees).
3. Without prejudice to any other remedies Splendid may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Splendid may suspend or terminate the supply of Works to the Client. Splendid will not be liable to the Client for any loss or damage the Client suffers because Splendid has exercised its rights under this clause.
4. Without prejudice to Splendid’s other remedies at law Splendid shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Splendid shall, whether or not due for payment, become immediately payable if:
  1. any money payable to Splendid becomes overdue, or in Splendid’s opinion the Client will be unable to make a payment when it falls due;
  2. the Client becomes insolvent or bankrupt, 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
  3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

Cancellation
1. Splendid may cancel any contract to which these terms and conditions apply or cancel provision of the Works at any time before the Works have commenced by giving written notice to the Client. On giving such notice Splendid shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Splendid for Materials already provided. Splendid shall not be liable for any loss or damage whatsoever arising from such cancellation.
2. In the event that the Client cancels the provision of the Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Splendid as a direct result of the cancellation (including, but not limited to, any loss of profits).
3. Cancellation of orders for Materials made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

Privacy Act 1988
1. The Client agrees for Splendid to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Splendid.
2. The Client agrees that Splendid may exchange information about the Client 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:
  1. to assess an application by the Client; and/or
  2. to notify other credit providers of a default by the Client; and/or
  3. 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
  4. to assess the creditworthiness of the Client.

The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

The Client consents to Splendid being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
The Client agrees that personal credit information provided may be used and retained by Splendid for the following purposes (and for other purposes as shall be agreed between the Client and Splendid or required by law from time to time):
1. the provision of Works; and/or
2. the marketing of Works by Splendid, its agents or distributors; and/or
3. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
5. enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Works.
Splendid may give information about the Client to a credit reporting agency for the following purposes:
1. to obtain a consumer credit report about the Client;
2. allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
The information given to the credit reporting agency may include:
1. personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
2. details concerning the Client’s application for credit or commercial credit and the amount requested;
3. advice that Splendid is a current credit provider to the Client;
4. advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
5. that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
6. information that, in the opinion of Splendid, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
7. advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
8. that credit provided to the Client by Splendid has been paid or otherwise discharged.

Other Applicable Legislation
1. At Splendid’s sole discretion, if there are any disputes or claims for unpaid Works then the provisions of the Building and Construction Industry Security of Payment 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 of Australia), 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.
2. Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the any of the Acts listed in clause 17.1 (each as applicable), except to the extent permitted by the Act where applicable.

General
1. The failure by Splendid to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Splendid’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.
2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which Splendid has its principal place of business, and are subject to the jurisdiction of the Beenleigh Courts in that state.
3. Subject to clause 12, Splendid 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 Splendid of these terms and conditions (alternatively Splendid’s liability shall be limited to damages which under no circumstances shall exceed the Price).
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 Splendid nor to withhold payment of any invoice because part of that invoice is in dispute.
5. Splendid may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
6. The Client agrees that Splendid may amend these terms and conditions at any time. If Splendid makes a change to these terms and conditions, then that change will take effect from the date on which Splendid notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Splendid to provide any Works to the Client.
7. 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.
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 valid legal obligations on it.