The following conditions, provisions and terms (‘Terms and Conditions’) govern the relationship between IMR and the Customer in connection with the supply of Goods and Services.
‘IMR’ means IMR Electrical Pty Ltd ABN 64 149 071 675.
‘Customer’ means the customer identified on any quotation, work authorisation or other form as provided by IMR to the Customer. ‘Contract’ means all contracts entered into between IMR and the Customer.
‘Collateral’ and/or ‘Goods’ means goods and/or services supplied by IMR to the Customer or ordered by the Customer but not yet supplied and includes goods described in these Terms and Conditions and on any quotation, invoice, purchase order or any other document including any recommendations and advice and over which IMR may intend to register a security interest.
‘Force Majeure Event’ includes act of God, war, civil disturbance, riot, lightning, cyclone, earthquake, fire, storm, flood, explosion, governmental action and any other cause, event or circumstance which is not reasonably within the control of either IMR or the Customer. ‘Price’ means either:
‘Services’ means all services supplied by IMR to the Customer and includes any advice or recommendations.
If any supply by IMR is subject to Goods and Services Tax (“GST”), the Customer must, unless the price expressly states that GST is included, pay the relevant GST amount in addition to the specified price.
2.1. Any quotations provided by IMR remain open for acceptance for a period of 30 days from the time of quotation. After this time, quotations will lapse and cease to be capable of acceptance by the Customer.
2.2. IMR’s obligation to supply the Goods and/or carrying out the Services is subject always to the availability of labour, supply/materials, plant, equipment and services making up, or necessary for, the supply of the Goods and Services.
2.3. Dates specified in any quotation for delivery of the Goods and/or completion of the Services are estimates only. IMR will use all reasonable endeavors to deliver the Goods or Services by dates specified in the quotation but does not warrant that such delivery date will be met.
2.4. The Customer may not reject the Goods and/or Services on account of IMR’s inability to comply with dates specified in any quotation.
2.5. IMR shall be entitled to vary any quotation previously provided to the Customer if:-
2.5.1. the Customer provides incomplete or inaccurate information to the Seller preventing IMR from providing an accurate quotation;
2.5.2. IMR experiences delays in providing the Goods or Services by virtue of any action or inaction on the part of the Customer where such delay is in excess of thirty (30) days from the commencement date specified in the quotation or if no such date is specified, then thirty days from the date on which the Customer accepts the quotation;
2.5.3. at the Customer’s request, IMR agrees to provide additional Goods or Services at any time after acceptance of the quotation by the Customer;
2.5.4. IMR experiences price increases in acquiring any Goods required in respect of providing the Goods and/or Services to the Customer after the date on which the quotation is accepted by the Customer;
2.5.5. the Customer is in breach of its obligations as set out in these Terms and Conditions causing IMR to incur loss for any reason directly or indirectly; and
2.5.6. any cause beyond IMR’s control causing the necessary variation.
3.1. The Customer agrees and acknowledges that:
3.1.1. these Terms and Conditions constitute a security agreement for the purposes of the PPSA;
3.1.2. these Terms and Conditions create a security interest in all any Goods supplied to the Customer including all present and after-acquired Goods;
3.1.3. IMR may register, on the Personal Property Security Register (in any manner IMR considers appropriate), a Security Interest in all and any Goods supplied to the Customer including all present and after-acquired Goods.
3.2. The Customer and IMR agree to contract-out of the PPSA in accordance with section 115 of the PPSA to the extent that the section applies for the benefit of, and does not impose a burden on, IMR. The Customer waives its right to receive a copy of any Financing Statement or any Financing Change Statement registered by IMR in respect of the Security Interest created by these Terms and Conditions.
3.3. The Customer agrees, at no cost to IMR, to execute any documents, provide all relevant information and co-operate fully with IMR to ensure that IMR has a perfected Security Interest (including, if applicable, a Purchase Money Security Interest as defined in the PPSA) in any relevant Goods.
3.4. The Customer agrees to notify IMR of any change in the Customer’s structure or management including any sale or disposition of any part of the business of the Customer, any change in directorships, shareholders or management or change in partnership or trusteeship 7 days prior to any such change taking effect.
3.5. The Customer warrants that it shall:
3.5.1. not register a financing change statement in respect of a Security Interest without the prior written consent of IMR;
3.5.2. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favor of a third party without the prior written consent of IMR; and
3.5.3. immediately advise IMR of any material change in the Customer’s structure or management including any sale or disposition of any part of the business of the Customer 7 days prior to any such change taking effect.
3.6. The Customer agrees to indemnify, and on demand reimburse, IMR for all costs and/or expenses incurred by IMR in registering, maintaining or releasing any Security Interest or for any document costs in respect of any Security Interest.
3.7. Defined terms in this clause have the same meaning as given to them in the PPSA.
4.1. Payment in full is required in respect of any Services rendered by IMR to the customer:
4.1.1 upon completion of the Services by IMR; or
4.1.2 within fourteen (14) days of the date of IMR issuing an invoice to the customer, at the sole discretion of IMR.
4.2. At IMR’s sole discretion:
4.2.1. a non-refundable deposit may be required prior to any supply of Goods or Services;
4.2.2. payments by credit card may attract a fee of 1.5% of the value of the payment.
4.3. IMR reserves the right to change the Price in the event of a variation from the plan of scheduled Services or specifications of the Goods (including but not limited to any variation as a result of additional work required due to unforeseeable circumstances or as a result of increases to IMR in the cost of materials and labour).
4.4. IMR reserves the right to submit payment claims at weekly, fortnightly or monthly intervals, or in accordance with IMR’s specified payment schedule for work performance, including the cost of variations and the value of any Goods delivered to the Customer but not yet installed.
4.5. IMR may, its absolute discretion, seek and recover from the Customer and the Customer agrees to pay:
4.5.1. interest on all overdue invoices at the rate of 5% per calendar month from the date of an unpaid invoice;
4.5.2. any costs and expenses incurred in collecting or attempting to
collect any amounts that are not paid by the Customer when due including debt collection agency’s expenses, and solicitors fees on a solicitor/client basis.
4.6. Amounts received by IMR may be applied first against interest, charges and expenses.
4.7. The Customer shall be liable for, and expressly undertakes to pay, all fees (including an Administration Fee in an amount to be set from time to time by IMR) for all costs incurred as a result of any cheque or electronic banking transaction being dishonored for whatever reason.
5.1. IMR shall not be liable for any loss or damage, including consequential loss or damage, arising from delay in delivery or failure to deliver Goods, either whole or in part, due to circumstances beyond its control.
5.2. The Customer shall make all arrangements necessary to take delivery of the Goods when they are tendered for delivery.
5.3. IMR’s obligation to deliver shall be discharged on Delivery. If the Customer is unable or unwilling to take delivery of the Goods when the Goods are ready for delivery, then IMR shall be entitled to charge a fee for the storage and re-delivery of the Goods.
6.1. The Customer acknowledges and agrees that:
6.1.1. if the Customer fails to give IMR notice of any noncomplying aspect of, or defects in, the Goods or Services (as the case may be) within seven (7) business days of Delivery, IMR will be deemed to have fully discharged its obligations under these Terms and Conditions;
6.1.2. IMR will, upon being deemed to have fully discharged its obligations under these Terms and Conditions, be released from any and all liability in respect of the Goods and Services supplied save for the continuing operation of any warranty expressly given under these Terms and Conditions;
6.1.3. IMR shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customer’s claim.
6.1.4. IMR is not liable to compensate the Customer where the defect or damage is caused by or arises through:
184.108.40.206. a failure on the part of the Customer to properly
maintain any Goods; or
220.127.116.11. a failure on the part of the Customer to follow any
instructions or guidelines provided by IMR; or
18.104.22.168. any use of any Goods otherwise than for any
application specified on a quote or order form; or
22.214.171.124. the continued use of any Goods after any defect
becomes apparent or would have become apparent to a reasonably prudent operator or user; or
126.96.36.199. the purported repair, alteration or overhaul of the
Goods by the Customer or a third party without IMR’s prior written consent; or
188.8.131.52. fair wear and tear, any accident or Force Majeure
6.2. The Customer may not assert any right of set off, counterclaim or abatement in respect of alleged defects concerning the Goods and Services and must pay all amounts due under these Terms and Conditions in full to IMR before pursuing any remedial or rectification claims.
7.1. IMR warrants that Goods supplied will be of acceptable quality and that the Services shall be performed with due care and skill.
7.2. All other warranties, liabilities and obligations imposed under statute are expressly excluded but only to the extent that this exclusion does not contravene the Australian Consumer Law or cause any part of these Terms and Conditions to be void.
7.3. In the event of defects in the Goods or Services supplied being identified within the period specified in clause 6.1.1 above, IMR’s liability is limited to:
7.3.1. in respect of Goods, either:
184.108.40.206. the cost of having the Goods repaired; or
220.127.116.11. the cost of replacing the Goods whether it be the same or equivalent Goods.
7.3.2. in respect of Services:
18.104.22.168. supplying the Services again; or
7.5. To the maximum extent permitted by law:
7.5.1. IMR will not be liable to the Customer or any other person or third party in respect of any consequential or other loss or damage (including loss of profit, loss of income, loss of rental, loss of production, loss of actual or potential business opportunity or loss to reputation) arising directly or indirectly from the performance or non-performance of the Goods, their use or misuse, or provision of Services under these Terms and Conditions;
7.5.2. IMR’s liability arising out of or in connection with these Terms and Conditions whether under the law of contract, in tort, in equity under statute or otherwise shall be limited in aggregate to an amount equal to the Price;
7.5.3. IMR shall not be liable to the Customer for any statements, representations, guarantees, conditions or warranties not expressly contained in these Terms and Conditions.
7.6. The Customer warrants that all Goods ordered by, and / or supplied to the Customer for commercial purposes only and, accordingly, the provisions of the National Credit Code will not apply.
8.1. IMR and the Customer agree that title to the Goods remain vested in IMR and shall not pass to the Customer until the Customer has paid all monies owing to IMR by the Customer for the particular Goods and the cost of installation in addition to any interest, fees, collection, repossession and / or legal costs incurred.
8.2. IMR shall retain an equitable interest in the Goods, whether separate or co-mingled or accessioned, which shall be stored in such a manner as to be clearly identifiable as the property of IMR, until title has passed to the Customer and further, upon re-sale of the Goods by the Customer, IMR shall have the right to trace any proceeds of sale to the extent that they relate to its Goods.
8.3. If payment has not been received, the Customer will transfer to IMR all of its rights in respect of the sale price.
8.4. IMR may demand at any time until title has passed to the Customer that the Customer, at the Customer’s cost, return the Goods or any part of them.
8.5. In the event that the Customer defaults in the payment of any monies owing, IMR and its employees or agents shall have the right to enter without notice upon the Customer’s premises or any other premises where the Goods are known to be stored to repossess the Goods and for this purpose the Customer shall grant reasonable access rights and IMR, its employees or agents shall be entitled to do all things required to secure repossession.
8.6. The Customer agrees and acknowledges that it is only a Bailee of the Goods and until such time as IMR has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount owes to IMR for the Goods, on trust for IMR.
8.7. Until title passes to the Customer, the Customer acknowledges that these conditions create, in IMR’s favor, a Purchase Money Security Interest in the Goods and any proceeds of their sale which IMR may register on the Personal Property Security Register.
9.1. Notwithstanding clause 8 above, the risk for the Goods supplied shall pass to the Customer upon Delivery.
9.2. If any of the Goods are damaged or destroyed prior to the title in them passing to the Customer, IMR is entitled, without affecting any other rights and remedies under any agreement, to any insurance proceeds payable for the Goods. The production of these Terms and Conditions by IMR will be sufficient evidence of IMR’s rights to receive the insurance proceeds without the need for any insurer or other third party acting on behalf of the insurer to make further enquiries.
10.1. IMR may cancel the delivery of Goods at any time before Delivery by giving notice to the Customer by any means.
10.2. IMR shall not be liable for any loss or damage, including any consequential loss or damage, arising from such cancellation.
10.3. In the event that the Customer cancels delivery of Goods, the Customer shall be liable for any costs incurred by IMR up to the time of the cancellation including, but not limited to, any freight and labour costs incurred by IMR.
11.1. The Customer acknowledges and agrees that the Terms and Conditions take precedence over any terms or conditions which may be contained in any document provided by the Customer.
11.3. Prices are subject to change without notice.
11.4. No person acting or purporting to act on IMR’s behalf has the authority to make any promise, representation or undertaking or to add to or change in any way these Terms and Conditions except expressly in writing.
11.5. The warranties, rights and remedies of the Customer as outlined in the Competition & Consumer Act 2010 are not intended to be compromised as a result of anything contained in these Terms and Conditions, except to the degree permitted by the Act.
11.6. Any request by the Customer for the supply of Goods shall constitute acceptance of these Terms and Conditions.
11.7. The Customer acknowledges that where the Customer consists of more than one party or entity, liability shall be joint and several.
11.8. The Customer hereby charges in favor of IMR all its estate and interest in any lands and in any other assets, whether tangible or intangible, freehold or leasehold, in which it now has any legal or beneficial interest or in which it later acquires any such interest with payment of all monies owed by the Customer and consents to the lodging by IMR of a caveat or caveats which note its interest in or over any such land or other covetable property.
11.9. Clerical errors are subject to correction and do not bind IMR.
11.10. The Customer’s rights under the Terms and Conditions are not assignable or transferrable.
11.11. Neither IMR nor the Customer shall be liable for any breach of any provision of any contract between them arising from a Force Majeure Event.
11.12. The invalidity or unenforceability of any provision of these Terms and Conditions shall not affect the validity or enforceability of the remaining provisions.
11.13. The Customer acknowledges that all orders placed with IMR by the Customer are made relying solely upon the Customer’s own skill and judgment.
11.14. These Terms and Conditions constitute a payment claim under the Building and Construction Industry Security of Payment Act 2009 (SA).
11.15. The failure by IMR to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect IMR’s right to subsequently enforce that provision.
Any dispute arising out these Terms and Conditions or connected to them including the enforcement of rights shall be governed by the law applying in South Australia and the parties submit to the non-‐exclusive jurisdiction of the courts (federal or state) in South Australia.