Standard Terms and Conditions for Commercial and Hospitality Contracting (CHS). Trading as Commercial and Hospitality Services Pty Ltd

ACN 63 641 567 482 (“CHS”)
 

Definitions

“CHS” means the Company that the Customer is contracting with whose business name and ABN appears on the quotation, invoice, receipt provided to the Customer.

“Customer” means the person/s placing the order for Works and/or products supplied by CHS to the Customer as specified in any invoice, document or order. The customer warrants that they have the power to enter into this agreement and has obtained all necessary authorisations to allow them to do so.

“Deposit” means the deposit amount set out in the Authorisation;

“Goods” means the goods required to be purchased and supplied by the Customer to complete the Services;

“Payment Dates” means the payment dates as specified on the Authorisation or as otherwise agreed in writing by the parties;

“PPSA” means the Personal Property Securities Act 2009 (Cth);

“Price” means the Quotation Price as adjusted by the Company in accordance with these Terms as necessary;

Company

“Quote” means any document containing a price for Works, including but not limited to Tax Invoices, quotations generated by computer or tablet devices or handwritten quotations.

“Services” means the services and Goods to be supplied by the Company to the Customer as detailed in the Authorisation and includes any parts thereof;

“Works” means any services rendered, products delivered or any future or completed work done by CHS.

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1. Incorporation

These conditions govern every contract for the sale of Goods and/or the provision of services by CHS to the Customer, constitute all the Terms and Conditions agreed between them to the exclusion of all other Terms and Conditions.
 

No modification to these Conditions, whether put forward in the Customer’s purchase order or otherwise shall bind CHS unless agreed to in writing by its authorised employee.
 

These Conditions supersede any Terms and Conditions which have previously governed contracts for the sale of Goods and Services by CHS to the Customer.

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2.  Acceptance

1. All orders placed with CHS shall only be accepted subject to these Terms and Conditions. The Customer has exclusively accepted and is immediately bound by these Terms and Conditions if the Customer places an order for the product/s or services, signs any Quote, pays the deposit, continues to provide instructions and/or accepts the product/s or Works.
    

2. CHS may, at any time, alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by CHS to the Customer.

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3. Pricing

• a)If there is any error or omission in the Quote, CHS reserves the right to change the contract sum on the Quote. This clause applies even if the Quote has been accepted by the customer. Prices quoted are subject to final costing assessment by CHS.
   

• b) Upon acceptance of the Quote by the Customer, CHS may require a deposit to be paid prior to any Works being commenced by CHS. This deposit is at the sole discretion of CHS.
   

• c) Notwithstanding any other clause, the contract sum on the Quote will only be valid for 30 days from the date of the quotation. CHS reserves the right to make any changes to the Quote if the 30 days lapses.
   

• d) At CHS' sole discretion a portion of or the full amount of the deposit may be non-refundable. The amount that is non-refundable is a true estimate of costs and expenses spent to date.
   

• e) CHS Electrical reserves the right to make any changes to the quotation including but not limited to the contract sum if either: (i) a variation is requested by the Customer, or (ii) a Quote has not been fulfilled within 30 days of the date the Quote was produced. Any variation from the quotation, schedule works or specifications will allow CHS the right to stop the progress of any works until CHS and the Customer agree to changes. Payment for all variations must be made in full at the time which they are raised.
   

• f) After CHS accept your order you may not cancel the order unless CHS agree in writing. CHS reserve the right to supply an order in full or only in part.
   

4. Quotations and Prices

Any quotation given by CHS is a mere invitation to treat and does not constitute a contractual offer. All quotations hold for 30 (thirty) days after issue, however, CHS may withdraw a quotation at any time.
 

Prices included in the quotation are based on the specification, drawings and/or requests by the Customer. Should the specification or Customer’s request change, then CHS reserves the right to vary the quotation price.

All quoted prices are exclusive of GST unless otherwise stated.

5. Payment

The terms of payment to CHS are as follows:
 

• a) for the supply and installation of any products or services by CHS payment is strictly COD unless otherwise agreed to a maximum of net 30 (thirty) days from the date of invoice;
   

• b) The customer shall make payment according to the Quote or unless the Customer has been granted a credit account. Granting of a credit account shall be at the absolute discretion of CHS and unless otherwise demanded by CHS the Customer granted credit account shall make payment within the terms approved in the credit account.
   

• c) If the customer fails to make payment in accordance with clause 4(A), CHS shall be entitled to:
   

• (i) Require the payment of cash upon delivery and commencement of any further Works;
   

• (ii) Charge default interest at the rate of 9% per annum on all overdue amounts (including late payment charges and amounts other than the contract sum) calculated on a day to day basis on any monies due but unpaid, such interest to be computed from the due date for payment AND the parties agree that such default is not a penalty but is a true measure of damages incurred by CHS. Payments received from the Customer will be credited first against any default interest and all such charges shall be payable upon demand;
   

• (iii) Claim from the Customer all costs relating to any action taken by CHS to recover moneys or goods due from the Customer including, but not limited to, any legal costs and disbursements on a solicitor-client basis;
   

• (iv) Cease any further Works for the Customer and terminate any agreement in relation to services and/or products that have not been provided or delivered; and
   

• d) The Customer shall not be entitled to set off against, or deduct from the contract sum, any sums owed or claimed to be owed to the Customer by CHS nor to withhold payment of any invoice because part of that invoice is in dispute.
   

Failure to pay within agreed credit terms will automatically create stop credit and will not be recommenced until payment is received for all amounts outstanding beyond agreed credit terms.
 

6. Delivery

The times quoted for delivery of goods and services are estimates only and CHS accepts no liability for failure or delay in delivery of the Goods and Services. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by installments at the discretion of CHS.
 

Risk in the Goods passes on delivery to the Customer.
 

7. Completion Time

a) Any date or time quoted for delivery and completion of the Works is an estimate only and CHS  shall endeavour to complete the Works at a time or times required by the Customer, but failure to do so shall not confer any right of cancellation, termination or refusal of delivery on the Customer’s part or render CHS liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.

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c) The Customer will not be relieved of any obligation to accept or pay for products by reason of any delay in delivery or any strike, lockout, unavailability of raw materials, accidents to machinery, differences with workmen, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or intervention imposed by any Laws, regulations, Governments or agency’s thereof and any other cause beyond the control of CHS or any other cause whatsoever.

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8. Inspection

a) The customer shall examine the products immediately after delivery and CHS shall not be liable for any misdelivery, shortage, defect or damage unless CHS receives details in writing within 14 days of the date of delivery of the products.
 

b) If CHS are employed to install said product/s the Customer shall not open, dismantle or otherwise handle the product/s.

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9. Title and Risk

a) Notwithstanding delivery of the product/s or their installation, property in any given products shall remain with CHS until the Customer has paid and discharged any and all other indebtedness to CHS on any account whatsoever including all applicable sales taxes and any other taxes, levies and duties. Any payment made by or on behalf of a Customer which is later voided by the application of any Statutory Provision shall be deemed not to discharge the Customer’s indebtedness and in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.
 

b) The Customer acknowledges that they are in possession of the products solely as a bailee for CHS until payment as defined in clause 4(A) has been made in full to CHS and until such payment, the Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery.
 

All equipment supplied and installed by CHS remains the property of the Company until all monies outstanding to the Company in connection with these Terms and Conditions have been paid.

In the event of a default by the Customer, then without prejudice to any other rights which CHS may have at law or under this contract:
 

• a)  until the Company receives full payment of the Price, CHS has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell those Goods free from any claims by the Customer

• a) CHS or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods.

• b) CHS may recover and resell the Goods;

• b) Where goods have been sold by CHS to recover monies outstanding to the customer, a facilitation fee for these services will occur. 
   

i. If the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, CHS may in its absolute discretion seize all Goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of CHS and the Customer may be ascertained. CHS must promptly return to the Customer any Goods the property of the Customer and CHS is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the CHS business howsoever arising from the seizure of the Goods.
 

ii. In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for CHS. Such part will be an amount equal in dollar terms to the amount owing by the Customer to CHS at the time of the receipt of such proceeds. The Customer will pay CHS such funds held in trust upon the demand of CHS.

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10 Force Majeure

CHS shall not be liable for any failure or delay in supply or delivery of the products or Works where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside the reasonable control of CHS including, but not limited to war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.

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11. Customers Acknowledgements

a) It is the sole responsibility of the Customer to check and confirm the order with CHS prior to signing the Quote. CHS will not be held liable for incorrect orders.
 

b) It is the responsibility of the Customer to ensure that the Works can be completed without interruption, in a continuous work flow and on the mutually agreed date. CHS reserves the right to charge the Customer any extra costs incurred by CHS by virtue of interruption including but not limited to additional return to site charges and travel costs. The customer shall be fully responsible to ensure that plumbing, electrical installations and any other installations not specified within this quotation do not foul the work area and associated areas. The customer shall be fully responsible for any necessary foundations.
 

c) The Customer shall ensure that CHS has clear and free access to the work site at all times to enable them carry out the Works. CHS shall take all due and reasonable care when delivering and installing the product/s in accordance the Terms and Conditions. CHS shall not be liable for any loss or damage to the site.
 

d) The Customer accepts all liability for, and indemnifies CHS against, any custom orders or additional requests that are outside the scope of works., including but not limited to anything that is labelled as a “client/customer requirement”. The usual scope of works, and what is outside same, is determined solely by CHS . 
 

e) CHS accepts no liability for the visual presentation or noise levels of installed products.

 

f) If the Customer is to provide goods or other services for which the Services are required, then the Customer must have the site ready and goods available at least 24 hours before the time at which the Company requires to perform the relevant Services in respect of such other goods or services.

 

g) The Customer accepts all liability for, and indemnifies CHS against, any custom orders or additional requests that are outside the usual scope of works

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12. Retention Money

Unless otherwise provided in writing in this tender, the purchaser shall not be entitled to retain any part of the purchase price by way of retention monies to guarantee satisfactory operation of the equipment supplied and installed.

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13. Indemnity

To the full extent permitted by law, the Customer will indemnify CHS and keep CHS indemnified from and against any liability and any loss or damage CHS may sustain, as a result of any breach, act, or omission, arising directly or indirectly from or in connection with any breach of any of these Terms and Conditions by the Customer or its representatives.

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14.  CHS Warranty and Claims

a) To the extent required by statute, subject to the conditions of CHS as may be set out in The Australian Consumer Law located in Schedule 2 of the Competition and Consumer Act 2010 (Cth) CHS warrants that if a defect in any of the Works carried out by CHS  is reported to CHS within 12 months of the date of completion, then CHS will either replace or remedy the Works subject to these Terms and Conditions.​

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b) Service under warranty shall only be available between the hours of 7.30am to 4.00pm Monday to Friday, and excludes public holidays, and warranty does not include routine maintenance service including filter cleaning, rectification of faults arising from power failure, misuse of equipment, lack of routine maintenance or operator error.

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c) Warranty for the purpose of this clause is either:

• a) Installation warranty; a guarantee of workmanship and associated ductwork and materials on new installations for a period of 12 (twelve) months whereby CHS will repair the product in the event of any defect,

• b) Service warranty; a guarantee of workmanship for service repair work for a period of 3 (three) months where the works will be performed again in the event of any defects associated with the initial service work.
   

d) All costs of freight and travelling expenses associated with making a claim under this warranty are to be paid by the Customer.
 

e) The Goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a “major failure” and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a “major failure”.
 

f) The benefits to you given by Chs' warranty are in addition to other rights and remedies that you may have under law in relation to the products to which this warranty relates.
 

g) Goods are subject to the manufacturer’s warranty. However, where permissible by law, the customer must pay for all work undertaken in carrying out a repair if the manufacturer’s assessment determines the claim does not fall within the manufacturer’s warranty terms.

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h) This warranty will not be applicable in any of the following:
 

(i) Defect or damage caused which may be caused or partly caused by or arising through the failure of the Customer to properly maintain any Works, follow any instructions or guidelines provided by CHSl, use of any Works in any other way than is outlined in the quotation or by the Customer’s negligence.
 

(ii) The Customer continues to use any of the works after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user.

(iii) The Customer allows someone other than a licensed professional to deal with the products. 

(iv) If the works fail due to fair wear and tear, any accident or act of God.
 

h) The warranty shall cease and CHS shall thereafter in no circumstances be liable under the terms of the warranty if the works are repaired, altered or overhauled without CHS express written consent.
 

i) In respect of all claims, CHS shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
 

j) If CHS must make an inspection outside of our premises, CHS may charge the Customer for all reasonable costs incurred including labour, travelling and other out-of-pocket expenses incurred if the fault or defect is deemed to be outside this warranty.
 

k) Where the Customer seeks to have defective goods replaced, CHS must have received notice within 6 months of the Customer receiving them and the goods must be returned to CHS within 12 month of the Customer receiving them.
 

l) Components and parts from third party suppliers are subject to the same warranty (if any) as is extended to CHS by the supplier.
 

m) If CHS replace defective goods, ownership in those defective goods transfers wholly and unconditionally to CHS .
 

n) If a claim is made by a Customer and CHS , after assessing the item, deem this to be out of warranty, CHS will make reasonable attempts to contact the Customer to arrange for the items to be returned. If, after 30 days, the Customer has not made arrangements to have the goods returned, CHS may dispose of the goods at the Customer’s expense.
 

o) Time is of the essence in relation to all stipulated time requirements in this clause.

The Customer must provide proof of purchase to make a claim under any warranty.

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If the Customer wishes to make a claim under this warranty, it should:

• Contact: 1300 004 247;

• In writing: Commercial & Hospitality Services PO Box 160 Surrey Downs, 5126 South Australia, Australia.;

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15. Termination

a) If the customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or enters into any composition or arrangement with creditors or if a receiver or manager is appointed for any property or assets of the customer or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, or if a Liquidator or Provisional Liquidator is appointed, CHS may, in addition to exercising all or any of its rights against the customer, suspend any further deliveries and immediately recover possession of any products not paid for in accordance with the Terms and Conditions. CHS will not be liable for any loss or damage the Customer suffers as a result of CHS exercising its rights under this Clause.}
 

b) If a Customer cancels or alters any order or part order for any product at any time after CHS has received the order then CHS reserves the right to charge to the Customer the cost of any product/s or materials already acquired for the order together with cost of labour and tooling expended to the date of such cancellation or alteration. This is a genuine estimate of costs and expenses incurred by CHS to date.
 

c) CHS reserves its rights as Seller under the Sale of Goods Actor similar State or Territory laws.

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

a) The Customer acknowledges and agrees that:
 

(i) this agreement constitutes a security agreement for the purposes of the PPSA and creates a registrable security interest under the PPSA in all materials supplied or will be supplied by CHS to the Customer;

(ii) CHS has the right to register a financing statement under the PPSA with respect to the security interest created by this agreement;

(iii) if CHS  registers a security interest under the PPSA, CHS may exercise any or all remedies afforded to it as a secured party, without prejudice to any other rights or remedies arising out of a breach by the Customer of any agreement with CHS ; and

(iv) the materials supplied or will be supplied by CHS to the Customer are collateral for the purposes of the PPSA.
 

b) The Customer waives any right the Customer has under the PPSA to receive notice in relation to registration events.
 

c) The Customer and CHS agree that neither party will disclose information of the kind specified under Section 275(1) of the PPSA.
 

d) CHS , at its absolute discretion and at any time, that any section of the PPSA specified in Section 115 will not apply to the extent permitted by Section 115.
 

e) This clause shall survive the Termination of the Contract.
 

17. Privacy Act 1988

b) The Customer hereby acknowledges that:

(i) CHS collects personal information such as contact details, bank account details, insurance details and credit card details and holds such information for seven (7) years. The purpose of the collection of personal information is only for internal use.

(ii) they have been informed by CHS that personal information about them may be disclosed to or acquired from or to a credit reporting agency.

(iii) if they require further information regarding CHS Privacy Policy they may obtain same by providing notice to CHS.
 

b) The Customer hereby agrees:

(i) that CHS may contact any trade references or other credit references at any time whether now or in the future for the purpose of assessing credit worthiness.

(ii) To CHS receiving from any other credit provider or providing to any credit provider any information whether by way of report record or otherwise relating to credit worthiness for the purposes of exchanging information, assessing credit worthiness and notification of default at any time whether now or in the future.

(iii) To CHS obtaining from a credit reporting agency a credit report on the Customer for the purposes of assessing any credit application and the Customer further consents to CHS obtaining such reports from time to time for the purposes of assessing credit worthiness during the continuance of credit provision.

(iv) To CHS obtaining from a business which provides credit information a report or information in relation to the Customer’s commercial credit worthiness or commercial dealings and using such information for the purpose of assessing the Customer’s application for credit.

(v) That, in the event of default of payment of any of their debts, CHS may disclose all information relating to the Customer’s account to its collection agency for the purpose of receiving any or all amounts outstanding.

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18. Intellectual Property

a) All information provided by CHS and its authorised representatives is confidential.
 

b)Any plans, drawings specifications and estimates given by  CHS must not be disclosed to any third party without the written consent of CHS or used by the Customer other than for the purposes of these Terms. Copyright in all plans, drawings, designs and Services and any reproductions remain with CHS.
 

c)All plans, drawings and designs remain the property of CHS and must be returned to CHS immediately upon demand.

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19. Sub-contract

a) The Company may sub-contract any or all of its rights and obligations under these Terms without the Customer’s consent.

 

20. General

a) If any clause or part thereof of these Terms and Conditions is invalid or not enforceable in accordance with its terms, all other terms or parts thereof which are self-sustained and capable of separate enforcement without regard to the invalid or unenforceable clause or part thereof is and will continue to be valid and enforceable in accordance with its term.
 

b) The Customer agrees that these Terms and Conditions are governed by and construed in accordance with the laws of the State or Territory of Australia from which this document is issued and the Customer and CHS submits to the non-exclusive jurisdiction of the Courts of the State or Territory of Australia from which this document is issued.
 

c) Subject to other clauses in these Terms and Conditions and implied provisions, CHS shall not be liable whatsoever to the Customer for any indirect, consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by CHS of these Terms and Conditions. In the alternative, CHS liability shall be limited to damages not exceeding the contract sum of the order.
 

d) CHS may assign all or any part of its rights and obligations without the Customer’s consent.

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