Trade Terms and Conditions
RT Empire Pty Ltd T/as Maiden Properties – Terms & Conditions of Trade
1.1 Maiden Properties, its successors and assigns or any person acting on behalf of and with the authority Maiden Properties
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation, invoice or other form as provided by Maiden Properties to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by Maiden Properties to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Maiden Properties to the Client.
1.5 “Services” shall mean all Services supplied by Maiden Properties to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Maiden Properties and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by Maiden Properties from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Maiden Properties shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
ABN 99 616 445 099
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Maiden Properties.
3.4 The Client shall give Maiden Properties not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Maiden Properties as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by Maiden Properties only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1 At Maiden Properties’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Maiden Properties to the Client in respect of
Goods supplied; or
(b) Maiden Properties’s quoted Price (subject to clause 4.2) which shall be binding
upon Maiden Properties provided that the Client shall accept Maiden Properties’s quotation in writing within thirty (30) days.
4.2 Maiden Properties reserves the right to change the Price in the event of a variation to
Maiden Properties’s quotation.
4.3 Maiden Properties may submit detailed progress payment claims in accordance with Maiden Properties’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
4.4 At Maiden Properties’s sole discretion a deposit may be required.
4.5 At Maiden Properties’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be made by instalments in accordance with Maiden Properties’s payment schedule.
4.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Maiden Properties.
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 At Maiden Properties’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Maiden Properties or Maiden Properties’s nominated carrier).
5.2 At Maiden Properties’s sole discretion the costs of delivery are included in the Price.
5.3 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.4 Maiden Properties may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 The failure of Maiden Properties to deliver shall not entitle either party to treat this contract as repudiated.
5.6 Maiden Properties shall not be liable for any loss or damage whatsoever due to failure by Maiden Properties to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Maiden Properties.
6.1 If Maiden Properties retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Maiden Properties is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Maiden Properties is sufficient evidence of Maiden Properties’s rights to receive the insurance proceeds without the need for any person dealing with Maiden Properties to make further enquiries.
6.3 Where the Client expressly requests Maiden Properties to leave Goods outside Maiden Properties’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
6.4 The Client acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly the Client agrees that these pipes cannot be fixed by simply removing plant/tree root growth or cleaning the drain, therefore no warranty is provided against this situation arising again in the future and in respect of
any work carried out in relation thereto.
7.1 The Client shall ensure that Maiden Properties has clear and free access to the work
site at all times to enable them to undertake the works. Maiden Properties 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 Maiden Properties.
8. Underground Locations
8.1 Prior to Maiden Properties commencing any work the Client must advise Maiden Properties of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
8.2 Whilst Maiden Properties will take all care to avoid damage to any underground services the Client agrees to indemnify Maiden Properties in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.
9.1 Maiden Properties and the Client agree that ownership of the Goods shall not pass
(a) the Client has paid Maiden Properties all amounts owing for the particular Goods;
(b) the Client has met all other obligations due by the Client to Maiden Properties in
respect of all contracts between Maiden Properties and the Client.
9.2 Receipt by Maiden Properties 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 Maiden Properties’s ownership or rights in respect of the Goods shall continue.
9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Maiden Properties shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Maiden Properties to the Client Maiden Properties may give notice in writing to the Client to return the Goods or any of them to Maiden Properties. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Maiden Properties shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Maiden Properties then Maiden Properties or Maiden Properties’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Maiden Properties 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 the Client owes to Maiden Properties for the Goods, on trust for Maiden Properties; and
(f) the Client shall not deal with the money of Maiden Properties in any way which may be adverse to Maiden Properties; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Maiden Properties; and
(h) Maiden Properties can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Maiden Properties will be the owner of the end products.
10.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery notify Maiden Properties of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Maiden Properties an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Maiden Properties has agreed in writing that the Client is entitled to reject, Maiden Properties’s liability is limited to either (at Maiden Properties’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
10.2 Goods will not be accepted for return other than in accordance with 10.1 above. 11. Warranty
11.1 Subject to the conditions of warranty set out in clause 11.2 Maiden Properties warrants that if any defect in any workmanship of Maiden Properties becomes apparent and is reported to Maiden Properties within twelve (12) months of the date of delivery then Maiden Properties will either (at Maiden Properties’s sole discretion) replace or remedy the workmanship.
11.2 The conditions applicable to the warranty given by clause 11.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Maiden Properties; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Maiden Properties shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Maiden Properties’s consent.
(c) in respect of all claims Maiden Properties shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
11.3 For Goods not manufactured by Maiden Properties, the warranty shall be the current warranty provided by the manufacturer of the Goods. Maiden Properties shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
12. Default and Consequences of Default
12.1 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 (10%) per calendar month (and at Maiden Properties’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Maiden Properties.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Maiden Properties from and against all costs and disbursements incurred by Maiden Properties in pursuing the debt including legal costs on a solicitor and own client basis and Maiden Properties’s collection agency costs.
12.4 Without prejudice to any other remedies Maiden Properties may have, if at any time the Client is in breach of any obligation (including those relating to payment) Maiden Properties may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Maiden Properties will not be liable to the Client for any loss or damage the Client suffers because Maiden Properties has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($30.00) or ten percent (20%) of the amount overdue (up to a maximum of two hundred dollars ($250.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to Maiden Properties’s other remedies at law Maiden Properties shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Maiden Properties shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Maiden Properties becomes overdue, or in Maiden Properties’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Maiden Properties may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 Maiden Properties or Maiden Properties’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Maiden Properties (or Maiden Properties’s 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.
(b) should Maiden Properties elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Maiden Properties from and against all Maiden Properties’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Maiden Properties or Maiden Properties’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 Maiden Properties may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Maiden Properties shall repay to the Client any sums paid in respect of the Price. Maiden Properties shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Maiden Properties (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Maiden Properties to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Maiden Properties.
15.2 The Client agrees that Maiden Properties 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:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) 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
(d) 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.
15.3 The Client consents to Maiden Properties being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Maiden Properties for the following purposes (and for other purposes as shall be agreed between the Client and Maiden Properties or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Maiden Properties, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the
15.5 Maiden Properties may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Maiden Properties is a current credit provider to the Client;
(d) 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;
(e) 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;
(f) information that, in the opinion of Maiden Properties, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Maiden Properties has been paid or otherwise discharged.
16. Unpaid Maiden Properties’s Rights
16.1 Where the Client has left any item with Maiden Properties for repair, modification, exchange or for Maiden Properties to perform any other Service in relation to the item and Maiden Properties has not received or been tendered the whole of the Price, or the payment has been dishonoured, Maiden Properties shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Maiden Properties is in possession of the item;
(c) a right to sell the item.
16.2 The lien of Maiden Properties shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
17. Building and Construction Industry Payments Act 2004
17.1 At Maiden Properties’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
17.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
18.1 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.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
18.3 Maiden Properties 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 Maiden Properties of these terms and conditions.
18.4 In the event of any breach of this contract by Maiden Properties the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.5 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 Maiden Properties nor to withhold payment of any invoice because part of that invoice is in dispute.
18.6 Maiden Properties may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.7 The Client agrees that Maiden Properties may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Maiden Properties notifies the Client of such change.
18.8 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.
18.9 The failure by Maiden Properties to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Maiden Properties’s right to subsequently enforce that provision.