Terms of Trade

1. Acceptance

1.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.

1.2 These terms and conditions may only be amended with Incite Plastering’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Incite Plastering.

2. Change in Control

2.1 The Customer shall give Incite Plastering not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by Incite Plastering as a result of the Customer’s failure to comply with this clause.

3. Price and Payment

3.1 At Incite Plastering’s sole discretion the Price shall be either:

as indicated on invoices provided by Incite Plastering to the Customer in respect of Works performed or Materials supplied; or
Incite Plastering’s quoted Price (subject to clause 3.2) which shall be binding upon Incite Plastering provided that the Customer shall accept Incite Plastering’s quotation in writing within thirty (30) days.

3.2 Incite Plastering reserves the right to change the Price:

if a variation to the Materials which are to be supplied is requested; or
if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, prerequisite work by any third party not being completed, or hidden pipes and wiring in walls etc.) which are only discovered on commencement of the Works; or
In the event of increases to Incite Plastering in the cost of labor or materials which are beyond Incite Plastering’s control.

3.3 At Incite Plastering’s sole discretion a non-refundable deposit may be required.

3.4 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by Incite Plastering, which may be:

on completion of the Works; or
payment for approved Customer’s shall be due on thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices; or
the date specified on any invoice or other form as being the date for payment; or
Failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Incite Plastering.

3.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and Incite Plastering.

3.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Incite Plastering an amount equal to any GST Incite Plastering must pay for any supply by Incite Plastering under this or any other agreement for the sale of the Materials. 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.

4. Delivery of Works

4.1 Subject to clause 4.2 it is Incite Plastering’s responsibility to ensure that the Works start as soon as it is reasonably possible.

4.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Incite Plastering claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Incite Plastering’s control, including but not limited to any failure by the Customer to:

make a selection; or
have the site ready for the Works; or
notify Incite Plastering that the site is ready.

4.3 Delivery of the Works is taken to occur at the time that Incite Plastering (or Incite Plastering nominated carrier) delivers the Materials to the Customer’s nominated address even if the Customer is not present at the address.

4.4 At Incite Plastering’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.

4.5 The Customer must take delivery by receipt or collection of the Materials whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Materials as arranged then Incite Plastering shall be entitled to charge a reasonable fee for redelivery and/or storage.

4.6 Any time or date given by Incite Plastering to the Customer is an estimate only. Incite Plastering shall not be liable for any loss or damage whatsoever due to failure by Incite Plastering to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of Incite Plastering.

5. Risk

5.1 If Incite Plastering retains ownership of the Materials under clause 7 then;

Where Incite Plastering is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
1. the Customer or the Customer’s nominated carrier takes possession of the Materials at Incite Plastering’s address; or
2. The Materials are delivered by Incite Plastering or Incite Plastering’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
Where Incite Plastering is to both supply and install Materials then Incite Plastering shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.

5.2 Notwithstanding the provisions of clause 5.1 if the Customer specifically requests Incite Plastering to leave Materials outside Incite Plastering’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.

5.3 The Customer acknowledges that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Incite Plastering will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.

5.4 Where Incite Plastering is required to undertake works the Customer warrants that the structure of the premises in or upon which these works are to be undertaken is sound and will sustain the installation and work incidental thereto and Incite Plastering shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.

6. Access

6.1 The Customer shall ensure that Incite Plastering has clear and free access to the work site at all times to enable them to undertake the works. Incite Plastering 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 Incite Plastering.

7. Customer Responsibilities

7.1 It is the intention of Incite Plastering and agreed by the Customer that it is the responsibility of the Customer to provide and have erected scaffolding to enable the works to be undertaken (where in Incite Plastering’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.

7.2 The Customer agrees to remove any furniture, furnishings or personal Materials from the vicinity of the works and agrees that Incite Plastering shall not be liable for any damage caused to those items through the Customers failure to comply with this clause.

8. Title

8.1 Incite Plastering and the Customer agree that ownership of the Materials shall not pass until:

the Customer has paid Incite Plastering all amounts owing to Incite Plastering; and
The Customer has met all of its other obligations to Incite Plastering.

8.2 Receipt by Incite Plastering of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared or recognized

8.3. It is further agreed that:

Until ownership of the Materials passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Incite Plastering on request.
The Customer holds the benefit of the Customer’s insurance of the Materials on trust for Incite Plastering and must pay to Incite Plastering the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
The production of these terms and conditions by Incite Plastering shall be sufficient evidence of Incite Plastering’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Incite Plastering to make further enquiries.
The Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for Incite Plastering and must pay or deliver the proceeds to Incite Plastering on demand.
The Customer should not convert or process the Materials or intermix them with other Materials but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Incite Plastering and must sell, dispose of or return the resulting product to Incite Plastering as it so directs.
Unless the Materials have become fixtures the Customer irrevocably authorises Incite Plastering to enter any premises where Incite Plastering believes the Materials are kept and recover possession of the Materials.
Incite Plastering may recover possession of any Materials in transit whether or not delivery has occurred.
The Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Incite Plastering.
Incite Plastering may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer

9. Personal Property Securities Act 2009 [“PPSA”]

9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

9.2 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 Materials that have previously been supplied and that will be supplied in the future by Incite Plastering to the Customer.

9.3 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 Incite Plastering 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 9.3 (i) or 9.3 (ii);

[b] indemnify, and upon demand reimburse, Incite Plastering 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 Materials charged thereby;

[c] Not register a financing change statement in respect of a security interest without the prior written consent of Incite Plastering;

[d] not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of Incite Plastering; and

[e] Immediately advise Incite Plastering of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.

9.4 Incite Plastering 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.

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

9.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA

9.7 Unless otherwise agreed to in writing by Incite Plastering, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

9.8 The Customer shall unconditionally ratify any actions taken by Incite Plastering under clauses 9.3 to 9.5.

9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

10. Security and Charge

10.1 In consideration of Incite Plastering agreeing to supply the Materials, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

10.2 The Customer indemnifies Incite Plastering from and against all Incite Plastering’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising Incite Plastering’s rights under this clause.

10.3 The Customer irrevocably appoints Incite Plastering and each director of Incite Plastering as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.

11. Defects, Warranties and Returns, Competition and Consumer Act 2010 [CCA]

11.1 The Customer must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify Incite Plastering in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Incite Plastering to inspect the Materials or to review the Works provided.

11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

11.3 Incite Plastering acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Incite Plastering makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. Incite Plastering’s liability in respect of these warranties is limited to the fullest extent permitted by law.

11.5 If the Customer is a consumer within the meaning of the CCA, Incite Plastering’s liability is limited to the extent permitted by section 64A of Schedule 2.

11.6 If Incite Plastering is required to replace any Materials under this clause or the CCA, but is unable to do so, Incite Plastering may refund any money the Customer has paid for the Materials.

11.7 If Incite Plastering is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then Incite Plastering may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Customer which were not defective.

11.8 If the Customer is not a consumer within the meaning of the CCA, Incite Plastering’s liability for any defect or damage in the Materials is:

limited to the value of any express warranty or warranty card provided to the Customer by Incite Plastering at Incite Plastering’s sole discretion;
limited to any warranty to which Incite Plastering is entitled, if Incite Plastering did not manufacture the Materials;
Otherwise negated absolutely.

11.9 Subject to this clause 11.9, returns will only be accepted provided that:

the Customer has complied with the provisions of clause 11.1; and
Incite Plastering has agreed that the Materials are defective; and
the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
The Materials are returned in as close a condition to that in which they were delivered as is possible.

11.10 Notwithstanding clauses 11.1 to 11.9 but subject to the CCA, Incite Plastering shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

the Customer failing to properly maintain or store any Materials;
the Customer using the Materials for any purpose other than that for which they were designed;
the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
interference with the Works by the Customer or any third party without Incite Plastering’s prior approval;
the Customer failing to follow any instructions or guidelines provided by Incite Plastering;
Fair wear and tear, any accident, or act of God.

11.11 Incite Plastering may in its absolute discretion accept non-defective Materials for return in which case Incite Plastering may require the Customer to pay handling fees of up to fifteen percent (15%) of the value of the returned Materials plus any freight costs.

11.12 Notwithstanding anything contained in this clause if Incite Plastering is required by a law to accept a return then Incite Plastering will only accept a return on the conditions imposed by that law.

12. Intellectual Property

12.1 Where Incite Plastering has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Incite Plastering, and shall only be used by the Customer at Incite Plastering’s discretion.

12.2 The Customer warrants that all designs, specifications or instructions given to Incite Plastering will not cause Incite Plastering to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Incite Plastering against any action taken by a third party against Incite Plastering in respect of any such infringement.

12.3 The Customer agrees that Incite Plastering may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Incite Plastering has created for the Customer.

13. Default and Consequences of

13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Incite Plastering’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

13.2 If the Customer owes Incite Plastering any money the Customer shall indemnify Incite Plastering from and against all costs and disbursements incurred by Incite Plastering in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, Incite Plastering’s contract default fees, and bank dishonor fees).

13.3 Without prejudice to any other remedies Incite Plastering may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Incite Plastering may suspend or terminate the supply of Works to the Customer. Incite Plastering will not be liable to the Customer for any loss or damage the Customer suffers because Incite Plastering has exercised its rights under this clause.

13.4 Without prejudice to Incite Plastering’s other remedies at law Incite Plastering shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Incite Plastering shall, whether or not due for payment, become immediately payable if:

any money payable to Incite Plastering becomes overdue, or in Incite Plastering’s opinion the Customer will be unable to make a payment when it falls due;
the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

14. Compliance with Laws

14.1 The Customer and Incite Plastering shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.

14.2 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

15. Cancellation

15.1 Incite Plastering may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice Incite Plastering shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to Incite Plastering for Works already performed. Incite Plastering shall not be liable for any loss or damage whatsoever arising from such cancellation.

15.2 In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Incite Plastering as a direct result of the cancellation (including, but not limited to, any loss of profits).

15.3 Cancellation of orders for products made to the Customer’s specifications, or for non-stock list items, will definitely not be accepted once production has commenced, or an order has been placed.

16. Privacy Act 1988

16.1 The Customer agrees for Incite Plastering to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Incite Plastering.

16.2 The Customer agrees that Incite Plastering may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

to assess an application by the Customer; and/or
to notify other credit providers of a default by the Customer; and/or
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
To assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

16.3 The Customer consents to Incite Plastering being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1) (h) Privacy Act 1988).

16.4 The Customer agrees that personal credit information provided may be used and retained by Incite Plastering for the following purposes (and for other purposes as shall be agreed between the Customer and Incite Plastering or required by law from time to time):

the provision of Works; and/or
the marketing of Works by Incite Plastering, its agents or distributors; and/or
analyzing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
Enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Works.

16.5 Incite Plastering may give information about the Customer to a credit reporting agency for the following purposes:

to obtain a consumer credit report about the Customer;
Allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

16.6 The information given to the credit reporting agency may include:

personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s license number);
details concerning the Customer’s application for credit or commercial credit and the amount requested;
advice that Incite Plastering is a current credit provider to the Customer;
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;
that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
information that, in the opinion of Incite Plastering, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonored more than once;
that credit provided to the Customer by Incite Plastering has been paid or otherwise discharged.

17. Building and Construction Industry Security of Payments Act 1999

17.1 At the Incite Plastering’s sole discretion, if there are any disputes or claims for unpaid Material and/or Works then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.

17.2 Nothing in this agreement is intended to have the effect 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.

18. General

18.1 The failure by Incite Plastering to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Incite Plastering’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which Incite Plastering has its principal place of business.

18.3 Subject to clause 11 Incite Plastering shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Incite Plastering of these terms and conditions (alternatively Incite Plastering’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

18.4 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 Incite Plastering nor to withhold payment of any invoice because part of that invoice is in dispute.

18.5 Incite Plastering may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

18.6 The Customer agrees that Incite Plastering may amend these terms and conditions at any time. If Incite Plastering makes a change to these terms and conditions, then that change will take effect from the date on which Incite Plastering notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Incite Plastering to provide any Works to the Customer.

18.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

18.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorizations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.