Nord Electrical Services Pty Ltd
1.1 “Nord” shall mean Nord Electrical Services Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Nord Electrical Services Pty Ltd.
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 or other form as provided by Nord 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 Nord 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 Nord to the Client.
1.5 “Services” shall mean all Services supplied by Nord 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 Nord and the Client in accordance with clause 4 of this contract.
1.7 “Premises” shall mean the land and premises owned or occupied or used by the Client or any premises where the Goods are situated.
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Client buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3.1 Any instructions received by Nord from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Nord 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.
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 Nord.
3.4 The Client shall give Nord 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 Nord as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by Nord 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.
3.6 Nord may, in its absolute discretion, accept or reject any order whether on account of the Goods being no longer available or for any other reason whatsoever.
3.7 Nord Meetings on site with the Client, other Services or Trades that are not arranged without sufficient notice (Minimum 48 hours) or when Nord are already on site will incur a call out fee.
3.8 Nord hereby reserves the rights to make, without notice, such minor modifications in specifications, designs or materials as it may at its discretion deem necessary or desirable.
4.1 At Nord’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Nord to the Client in respect of Goods supplied; or
(b) Nord’s quoted Price (subject to clause 4.2) which shall be binding upon Nord provided that the Client shall accept Nord’s quotation in writing within thirty (30) days.
4.2 Nord reserves the right to change the Price in the event of a variation to Nord’s quotation. Any 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 Nord in the cost of materials and labour) will be charged for on the basis of Nord’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At Nord’s sole discretion:
(a) a non-refundable deposit may be required; and/or
(b) payment shall be due on, or before, delivery of the Goods; and
(c) it may submit payment claims at weekly, fortnightly or monthly intervals, or in accordance with Nords specified payment schedule for work performed, including the cost of variations and the value of any Goods delivered to the site but not yet installed.
4.4 Unless otherwise expressly stated in writing by Nord, payment shall be due and payable seven (7) days following the invoice.
4.5 Payment by credit card will be subject to a surcharge of up to one and a half percent (1.5%) of the amount paid.
4.6 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.
5.1 At Nord’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Nord’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Nord or Nord’s nominated carrier).
5.2 At Nord’s sole discretion the costs of delivery are in addition to the Price and, where applicable, charged to the Client’s account.
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Nord shall be entitled to charge a reasonable fee for the storage and/or redelivery of the Goods.
5.4 Nord 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 Nord to deliver shall not entitle either party to treat this contract as repudiated.
5.6 Nord shall not be liable for any loss or damage whatsoever due to failure by Nord to deliver the Goods (or any of them) promptly or at all, where the failure is due to circumstances beyond the control of Nord.
6.1 Irrespective of whether Nord 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, Nord is entitled to receive all insurance proceeds in respect of the Goods. The production of these terms and conditions by Nord will be sufficient evidence of Nord’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.
6.3 Where the Client expressly requests Nord to leave Goods outside Nord’s premises for collection or to deliver the Goods to an unattended location then such arrangement shall be at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are adequately insured or at all.
7.1 Nord and the Client agree that title to the Goods shall not pass until:
(a) the Client has paid Nord all amounts owing for the particular Goods and the cost of installation; and
(b) the Client has met all other obligations due by the Client to Nord in respect of all contracts between Nord and the Client.
7.2 Receipt by Nord 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 Nord’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and in manner that makes them readily identifiable as Nord’s Goods until Nord shall have received payment and all other obligations of the Client have been met; and
(b) until such time as title to the Goods shall pass from Nord to the Client Nord may give notice in writing to the Client to return the Goods or any of them to Nord. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Nord 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 Nord then Nord or Nord’s agent may (as the invitee of the Client) enter upon the Premises and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Nord 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 Nord for the Goods, on trust for Nord; and
(f) the Client shall not deal with the money of Nord in any way which may be adverse to Nord; 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 Nord; and
(h) Nord can issue proceedings to recover the Price of the Goods sold notwithstanding that title to the Goods may not have passed to the Client; and
(i) until such time that title in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Nord will be the owner of the end products.
8.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Client and Nord by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Goods previously supplied by Nord to the Client (if any);
(ii) all Goods that will be supplied in the future by Nord to the Client.
8.3 The Client 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 Nord 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 clause 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, Nord 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 charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Nord;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Nord; and
(e) immediately advise Nord of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 Nord 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.
8.5 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.
8.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by Nord, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Client shall unconditionally ratify any actions taken by Nord under clauses 8.3 to 8.5.
9.1 Despite anything to the contrary contained herein or any other rights which Nord 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 Nord or Nord’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 Nord (or Nord’s nominee) shall be entitled to lodge where appropriate a caveat against land owned by the Client and/or the Guarantor, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Nord elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Nord from and against all of Nord’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 Nord or Nord’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 9.1.
10.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Nord of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Nord 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 Nord has agreed in writing that the Client is entitled to reject, Nord’s liability is limited to either (at Nord’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Competition and Consumer Act 2010 (Cwlth) or the Fair Trading Acts of the relevant state or territories of Australia, and may therefore also be entitled to, either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
11.1 Returns of stocklist items or Goods will only be accepted at Nord’s sole and absolute discretion, and provided that:
(a) the Client has complied with the provisions of clause 10.1; and
(b) Nord has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
(d) Nord will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
11.2 Non-stocklist items or Goods made to the Client’s specifications will not be accepted for credit or return.
12.1 Subject to the conditions of warranty set out in clause 12.2 Nord warrants that if any defect in any workmanship of Nord becomes apparent and is reported to Nord within twelve (12) months of the date of delivery (time being of the essence) then Nord will either (at Nord’s sole discretion) replace or remedy the workmanship.
12.2 The conditions applicable to the warranty given by clause 12.1 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 Nord; 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 be rendered void and of no force or effect if the Goods are repaired, altered or overhauled without Nord’s prior written consent.
(c) in respect of all claims Nord 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.
12.3 For Goods not manufactured by Nord, the warranty shall be the current warranty provided by the manufacturer of the Goods. Subject to the Price being fully paid, Nord shall take whatever steps are necessary to transfer the manufacturer’s warranty to the Client.
13.1 Where Nord has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Nord, and shall only be used by the Client at Nord’s discretion.
13.2 The Client warrants that all designs or instructions to Nord will not cause Nord to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Nord against any action taken by a third party against Nord in respect of any such infringement.
13.3 The Client agrees that Nord may use any documents, designs, drawings or Goods created by Nord for the purposes of advertising, marketing, or entry into any competition.
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of one and a quarter percent (1.25%) per calendar compounding monthly.
14.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Nord.
14.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Nord from and against all costs and disbursements incurred by Nord in pursuing the debt including legal costs on a solicitor and own client basis and Nord’s collection agency costs.
14.4 Without prejudice to any other remedies Nord may have, if at any time the Client is in breach of any obligation (including those relating to payment) Nord may suspend or terminate the supply of Goods and Services to the Client and any of its other obligations under the terms and conditions. Nord will not be liable to the Client for any loss or damage the Client suffers because Nord has exercised its rights under this clause.
14.5 Without prejudice to Nord’s other remedies at law Nord shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Nord shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Nord becomes overdue, or in Nord’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.
15.1 Nord 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 Nord shall repay to the Client any sums paid in respect of the Price. Nord shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Nord (including, but not limited to, any loss of profits) up to the time of cancellation.
15.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will not be accepted, once production has commenced.
16.1 These terms and conditions are to be read in conjunction with Nord’s standard ASIAL monitoring agreement (where applicable). If there are any inconsistencies between the two documents the terms and conditions in this document shall prevail.
17.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Nord to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Nord.
17.2 The Client agrees that Nord 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.
17.3 The Client consents to Nord being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by Nord for the following purposes (and for other purposes as shall be agreed between the Client and Nord or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Nord, 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 Goods.
17.5 Nord 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.
17.6 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 Nord 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 Nord, 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 Nord has been paid or otherwise discharged.
18.1 Where the Client has left any item with Nord for repair, modification, exchange or for Nord to perform any other Service in relation to the item and Nord has not been paid the whole of the Price, or the payment has been dishonoured, Nord shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Nord is in possession of the item;
(c) a right to sell the item.
18.2 The lien of Nord shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
19.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
20.1 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.
20.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
20.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of Sydney, New South Wales.
20.4 Nord 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 Nord of these terms and conditions.
20.5 In the event of any breach of this contract by Nord the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price.
20.6 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 Nord nor to withhold payment of any invoice because part of that invoice is in dispute or as a result of a defect occurring.
20.7 Nord may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.8 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.
20.9 The Client must not assign, or attempt to assign, or otherwise transfer, any right arising out of this agreement without the prior written consent of Nord.
20.10 The failure by Nord to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Nord’s right to subsequently enforce that provision.