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TERMS AND CONDITIONS OF TRADE

1. General

(1) These conditions (which shall only be varied or waived in writing signed by GOODWINS) shall prevail over all conditions of the Customer’s order to the extent of any inconsistency.

(2) The Customer is taken to have exclusively accepted and is immediately bound by these Terms and Conditions if the Customer places an order for, or accepts delivery of the Goods or Services.

2. Terms of Trade

(1) The Goods (and all other products sold or supplied) and fabricating Services performed by GOODWINS are sold subject to these terms and conditions.

3. Quotations

(1) Unless otherwise stated, GOODWINS’ quotations are not an offer and are an invitation only for the Customer to make an offer to GOODWINS. On the basis of the quotation, the client may make an offer to GOODWINS by placing an order within the period stated in them or, where no period is so stated, within thirty (30) days after the date of the quotation issue.

(2) GOODWINS may, at its absolute discretion, accept or reject the Customer’s order within seven (7) days after receipt.

(3) GOODWINS reserves the right to change the Price:-

(a) If a variation to Goods to be supplied is requested; or

(b) If a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or

(c) 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, obscured site defects, safety considerations, prerequisite work by any third party not being completed, etc.) which are only discovered on commencement of the Services; or

(d) In the event of increases to GOODWINS in the cost of labour or materials which are beyond GOODWINS’ control.

(4) For the purposes of subclauses (3)(a) and (b), a “variation” of any goods or services includes any additions, subtractions, substitutions, or modifications made to the Goods to be supplied or the Services scheduled since GOODWINS provided its quotation to the Customer.

4. Packing

(1) The cost of any special packing and packing material used in relation to the Goods are at the Customer’s expense notwithstanding that such costs may have been omitted from any quotation or purchase order.

5. Drawings and Specifications

(1) All specifications, drawings and plans and dimensions submitted to or by GOODWINS are approximate only. To the extent permitted by law:

a. GOODWINS does not accept any liability arising from minor or cosmetic differences between specifications, drawings, plans and dimensions and the Goods and/or Services.

b. GOODWINS does not accept any liability arising from any indirect or
consequential loss suffered by the Customer as a result of any difference
between the specifications, drawings and plans and dimensions submitted to or by GOODWINS and the Goods and/or Services provided to the Customer.

(2) The descriptions, illustrations and performances contained in any catalogue, pricelist or any other advertising material do not form part of the contract of sale of the Goods or the description applied to the Goods and the Customer confirms that it has made its own independent enquiries into the suitability of the Goods for the Customer’s
particular purposes.

(3) Where specifications, drawings or other particulars are supplied by the Customer and GOODWINS’ price is made on estimates of quantities required, then if there are any adjustments in quantities above or below the quantities estimated by GOODWINS and set out in any quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in the quotation or purchase order.

6. Delivery

(1) The delivery times made known to the Customer are estimates only and to the maximum extent permitted at law, GOODWINS excludes liability for any late delivery or non-delivery.

(2) GOODWINS is not liable for any loss, damage, or delay occasioned to the Customer or any of its customers arising from late delivery of the Goods.

(3) If GOODWINS delivers any of the Goods by instalment, and any one of those instalments is defective for any reason:-

(a) It is not a repudiation of the contract of sale formed by these conditions; and

(b) The defective instalment is a severable contractual component the alleged breach of which gives rise only to a claim for compensation.

7. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)

(1) The Customer must:

a. inspect the Goods and Services delivered; and

b. must within 48 hours of delivery notify GOODWINS in writing of any evident defects/damage, shortage in quality, or failure to comply with the description or quote.

(2) In the absence of any notification under clause 7(1), GOODWINS will assume that the Goods and Services contain no evident defects/damage and are fully compliant with the description or quote and to the maximum extent permitted by law disclaims liability for any evident defects/damages to the Goods..

(3) The Customer must notify GOODWINS in writing of any other alleged defect in the Goods or Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow GOODWINS to inspect the Goods. The inspection must occur at the business premises of GOODWINS unless otherwise agreed in writing.

(4) 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).

(5) GOODWINS acknowledges that nothing in these Terms and Conditions purports to modify or exclude the non-excluded guarantees except as expressly set out in these Terms and Conditions or in respect of the non-excluded guarantee.

(6) GOODWINS makes no warranties or other representations under these Terms and Conditions including but not limited to the quality or suitability of the Goods or Services and GOODWIN’s liability in respect of these warranties is limited to the fullest extent permitted by law.

(7) If the Customer is a consumer within the meaning of the CCA, GOODWIN’s liability is limited to the extent permitted under Section 64A of Schedule 2.

(8) If GOODWINS is required to rectify, re-supply or pay the costs of re-supplying any Services or Goods under these Terms and Conditions or the CCA, but is unable to do so, then GOODWINS may refund any money the Customer has paid for the Services or Goods but only to the extent that such refund shall take into account the value of any Services or Goods and consumables which have been provided to the Customer which were not defective.

(9) If the Customer is not a consumer within the meaning of the CCA, GOODWINS’ liability for any defect or damage in the Goods or Services is:-

(a) Limited to the value of any expressed warranty provided to the Customer by GOODWINS at GOODWINS’ sole discretion;

(b) Limited to any warranty to which GOODWINS is entitled, if GOODWINS did not manufacture the equipment;

(c) Otherwise negated absolutely.

(10) Notwithstanding subclauses 1 through 9, but subject to the CCA, GOODWINS shall not be liable for any defect or damage which may be caused or partly caused by, or arise as a result of:-

(a) The Customer failing to properly maintain or store any Goods;

(b) The Customer interfering with the Goods in any way without GOODWINS’ written approval to do so, including but not limited to damage caused deliberately or negligently by the Customer, modifications, additions or alterations

(c) The Customer using the Goods for any purpose other than for that which it was designed;

(d) The Customer continuing to use the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(e) The Customer failing to follow any instructions or guidelines provided by GOODWINS;

(f) Fair wear and tear, any accident or act of God.

8. Price

(1) Unless otherwise stated all prices quoted by GOODWINS are net, exclusive of GST.

(2) At GOODWINS’ sole discretion the Price shall be either:-

(a) As indicated on Invoices provided by GOODWINS to the Customer in respect of Goods and Services supplied; or

(b) GOODWINS’ quoted Price (subject to clause 3), which shall be binding upon GOODWINS provided that the Customer shall make an offer by placing an order with GOODWINS in writing pursuant to the quotation within 30 days.

9. Payment

(1) Time for payment for the Goods and Services being of the essence, the price will be payable by the Customer on the day determined by GOODWINS, which may be:-

(a) On delivery of the Goods; or

(b) For approved Customers made by instalments in accordance with GOODWINS’ payment schedule; or

(c) The date specified on any Invoice or other form or as requested by GOODWINS with respect to any pre-payment or instalment, as being the date for payment; or

(d) Failing any notice to the contrary, the date which is 7 days following the date of any Invoice issued to the Customer by GOODWINS.

(2) Payment may be made by cash, cheque, bank cheque, electronic/online banking, or by any other method as agreed between the Customer and GOODWINS.

(3) The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by GOODWINS, nor withhold payment of any invoice because part of that invoice is in dispute.

(4) Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to GOODWINS an amount equal to any GST. GOODWINS must pay for any supply of Goods or Services by GOODWINS under this or any other agreement.

(5) The customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.

(6) Receipt by GOODWINS of any form of payment under than cash shall not be deemed to be payment until the form of payment has been  honoured, cleared or recognised.

10. Rights in Relation to Goods

(1) GOODWINS reserves the following rights in relation to the Goods until all accounts owed by the Customer to GOODWINS are fully paid:-

(a) Ownership of the Goods;

(b) To enter the Customer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and

(c) To keep or resell any Goods repossessed pursuant to (b) above.

(2) Notwithstanding the provisions in subclause 10(1) hereof, GOODWINS shall be entitled to maintain an action against the Customer for the purchase price.

(3) The Customer is a bailee of the Goods until such time as ownership of them passes to the Customer and this bailment continues in relation to the Goods until all accounts owed by the Customer to GOODWINS are fully paid. However the risk of the Goods passes to the Customer upon the earlier of:-

(a) Actual or constructive delivery of the Goods to the Customer; or

(b) Collection of the Goods from GOODWINS or any bailee or agent of GOODWINS by the Customer’s agent, carrier or courier.

11. Storage

(1) GOODWINS reserves the right to charge the Customer a reasonable amount for storage if delivery instructions are not provided by the Customer within 14 days of a request by GOODWINS for such instructions.

(2) The parties agree that GOODWINS may charge for storage from the first day after GOODWINS requests the Customer to provide delivery instructions.

12. Return of the Goods

(1) GOODWINS is not under any duty to accept Goods returned by the Customer and will do so only on terms to be agreed in writing in each individual case.

(2) If GOODWINS agrees to accept returned Goods from the Customer under subclause 12(1), the Customer must return the Goods to GOODWINS at GOODWINS’ principal place of business.

13. Goods Sold

(1) All Goods to be supplied by GOODWINS to the Customer are as described on the purchase order agreed by GOODWINS and the Customer and the description on such purchase order modified or so agreed prevails over all other descriptions including any specification or enquiry of the Customer.

14. Cancellation

(1) No order may be cancelled except with consent in writing from GOODWINS and on  terms which will indemnify GOODWINS against all losses (including but not limited to any loss of profits).

(2) GOODWINS may also cancel delivery of Goods and Services at any time if it is unable to fulfil an order in a reasonable time due to circumstances outside of its control, including but not limited to: GOODWINS’s supplier is unable to supply Goods that they have previously promised to supply, any act of God, war, riot, terrorism, strike, lockout, industrial action, fire, flood, drought, storm or tempest.

(3) Cancellation will take effect as of the time of GOODWINS providing written notice. On giving such notice GOODWINS shall repay the Customer any sums paid in respect of the price.

(4) To the extent permitted by law, GOODWINS shall not be liable to the Customer for any indirect or consequential loss or damage arising from such cancellation.

15. 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 the rate of 3.5% (three and one-half percent) per calendar month (and at GOODWINS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

(2) If the Customer owes GOODWINS any money the Customer shall indemnify GOODWINS from and against all costs and disbursements incurred by GOODWINS in recovering the debt (including but not limited to internal administration fees, legal costs on a Solicitor and own client basis, Collection Agency costs and bank dishonour fees).

(3) Without prejudice to any other remedies GOODWINS may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these Terms and Conditions GOODWINS may repossess the Goods or suspend or terminate the supply of Goods or Services to the Customer and any of its other obligations under the Terms and Conditions. GOODWINS will not be liable to the Customer for any loss or damage the Customer suffers because GOODWINS has
exercised its rights under this clause.

(4) Without prejudice to GOODWINS’ other remedies at law GOODWINS shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies GOODWINS may have and all amounts owing to GOODWINS shall, whether or not due for payment, become
immediately payable in the event that:-

(a) Any money payable to GOODWINS becomes overdue, or in GOODWINS’ opinion, acting reasonably, the Customer will be unable to meet its payments as they fall due or fails any common law insolvency test; or

(b) The Customer becomes insolvent, convenes a meeting with its creditors or proposed to enter 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 a Customer or any asset of the Customer.

16. Security and Charge

(1) Where the Customer and/or the Guarantor (if any) is now or in the future the owner of land, realty or any other asset capable of being charged, both the Customer 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 GOODWINS or GOODWIN’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that GOODWINS (or GOODWINS’ 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.

(2) Should GOODWINS elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify GOODWINS from and against all GOODWINS’s costs and disbursements including legal costs on a solicitor and own client basis.

(3) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint GOODWINS or GOODWINS’ nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.

17. Personal Property Securities Act 2009 (“PPSA”)

(1) Upon assenting to these terms and conditions in writing the Customer 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 GOODWINS to the Customer.

(2) The Customer undertakes to:

a. 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 GOODWINS may reasonably require to;

i. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

ii. register any other document required to be registered by the PPSA; or

iii. correct a defect in a statement referred to in subclause 17.2(a)(i) or 17.2(a)(ii);

b. indemnify, and upon demand reimburse, GOODWINS 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 and/or Services charged thereby;

c. not register a financing change statement in respect of a security interest without the prior written consent of GOODWINS;

d. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or Services in favour of a third party without the prior written consent of GOODWINS;

e. immediately advise GOODWINS of any material change in its business practices of selling the Goods and/or Services which would result in a change in the nature of proceeds derived from such sales.

(3) GOODWINS and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

(4) The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

(5) The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

(6) Unless otherwise agreed to in writing by GOODWINS, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

(7) If it is held that section 125 of the PPSA must apply, the Customer agrees that at any time after any security interest provided for by this agreement or terms and conditions has become enforceable, GOODWINS may delay taking action to remain the whole or part of the Collateral to the extent permitted by law.

(8) The Customer’s right to possession of Goods still owned by GOODWINS shall cease if:

a. the Customer being an individual, commits an act of bankruptcy;

b. the Customer being a company, circumstances arise where a receiver, manager, administrator, liquidator or controller becomes entitled to take possession of any of its assets, any proceedings are instituted for winding up, or the Customer entering into a Deed of Company Arrangement;

c. the Customer ceases or threatens to cease conducting business in the normal manner or applying for deregistration or receives a deregistration notice;

d. any cheque the Customer provides GOODWINS is dishonoured;

e. the Customer fails to comply with any demand for payment issued by GOODWINS; or

f. the Customer breaches any of the terms and conditions contained herein.

(9) The Customer must unconditionally ratify any actions taken by GOODWINS pursuant to this clause.

(10) 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 the PPSA.

18. Privacy Act 1988

(1) The Customer agrees for GOODWINS 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 Customer in relation to credit provided by GOODWINS.

(2) The Customer agrees that GOODWINS may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:

a. to assess an application by the Customer; and/or

b. to notify other credit providers of a default by the Customer; and/or

c. to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

d. to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.

(3) The Customer consents to GOODWINS being given a consumer credit report to collect overdue payment on commercial credit.

(4) The Customer agrees that personal credit information provided may be used and retained by GOODWINS for the following purposes (and for other agreed purposes or required by):

a. the provision of the Goods and/or Services; and/or

b. the marketing of the Goods and/or Services by GOODWINS, its agents or distributors; and/or

c. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of the Goods and/or Services; and/or

d. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or

e. enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods and/or Services.

(5) GOODWINS may give information about the Customer to a CRB for the following purposes:

a. to obtain a consumer credit report;

b. allow the CRB to create or maintain a credit information file about the Customer including credit history.

(6) The information given to the CRB may include:

a. personal information as outlined in subclause 18(1) above;

b. name of the credit provider and that GOODWINS is a current credit provider to the Customer;

c. whether the credit provider is a licensee;

d. type of consumer credit;

e. details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);

f. advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and GOODWINS has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);

g. information that, in the opinion of GOODWINS, the Customer has committed a serious credit infringement;

h. advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

(7) The Customer shall have the right to request (by e-mail) from GOODWINS:

a. a copy of the information about the Customer retained by GOODWINS and the right to request that GOODWINS correct any incorrect information; and

b. that GOODWINS does not disclose any personal information about the Customer for the purpose of direct marketing.

(8) GOODWINS will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.

(9) The Customer can make a privacy complaint by contacting GOODWINS via e-mail. GOODWINS 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 thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

19. Other

(1) The contract for the sale of Goods and Services is made in the State of Queensland from which this document is issued. These terms and conditions shall be governed by the laws of the State of Queensland and their form, execution, validity, construction and effect shall be determined in accordance with the laws of the State of Queensland. The parties submit all disputes arising between them to the Courts of Queensland.

(2) The failure of any party to enforce any provision of these Terms and Conditions or to exercise any rights expressed herein, is not a waiver of such provision or rights and does not affect the enforcement of those Terms and Conditions. No waiver under this subclause operates as an estoppel against the party who seeks to rely on this subclause. The exercising by any party of any of its rights expressed herein does not preclude or prejudice such party from exercising the same or any other rights it may have irrespective of any previous action taken by that party.

(3) If any provision of these terms and conditions is held to be invalid or unenforceable for any reason, it shall be severable and shall not affect the remaining provisions of these terms and conditions.

(4) These terms and conditions constitutes the entire agreement of the parties in relation to the supply of Goods and/or Services by GOODWINS to the Customer, and supersedes all prior undertakings, negotiations, agreement written or oral, express or implied, in relation thereto.

(5) Neither party shall be liable for any breach of contract or default due to any act of God, war, riot, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm, tempest, or other event beyond the reasonable control of either party.

20. Definitions

In these terms and conditions the following words have the following meanings:

(1) “Customer” means the Customer or any person acting on behalf of and with the authority of the Customer as specified in any invoice, document or order and if there is more than one, Customer is a reference to each Customer jointly and severally.

(2) “Guarantor” means the person (if any) offering a personal guarantee, and if there is more than one, Guarantor is a reference to each Guarantor jointly and severally.

(3) “Goods” means all of the goods including any accessories supplied by GOODWINS to the Customer (and where the context so permits shall include any incidental supply of Services). The Goods shall be as described on the Invoices, Quotation or any other authority forms as provided by GOODWINS to the Customer.

(4) “GOODWINS” means SKJG Pty Ltd (ACN 619 152 297) as trustee for SKJG Trust trading as The Goodwins & Son (ABN 54 996 101 316), its successors and assignors or any person acting on behalf of and with the authority of GOODWINS.

(5) “GST” has the same meaning given to it by the A New Tax System (Goods and Services Tax) Act 1999.

(6) “Price” means the price of the Goods or Services as agreed between GOODWINS and the Customer subject to clause 8.

(7) “Services” means the provision of all plumbing services or services incidental thereto provided by GOODWINS for and on behalf of the Customer or as directed by the Customer.

(8) “Terms and Conditions” means these terms and conditions.

21. Interpretation

In interpreting these terms and conditions unless the context indicates a contrary intention, the following applies:

(1) Words importing the singular include the plural and vice versa.

(2) Words importing any gender include all other genders and no gender.

(3) References to persons includes corporations and bodies politic.

(4) References to a person include the successors and permitted assigns of that person.

(5) References to this or any other document include the document as varied or replaced, and notwithstanding any change in the identity of the parties.

(6) An obligation of two or more parties shall bind them jointly and severally.

(7) A reference to legislation includes all subordinate legislation, as well as any replacement or re-enactment.