Terms & Conditions of Trade
Think Trade Services Pty Ltd
1. Definitions
1.1. “Think Trade Services” shall mean Think Trade Services Pty Ltd its successors and assigns or any person acting on behalf of and with the authority from Think Trade 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 estimate, quotation, work order or other form as provided by Think Trade Services to the Client.
1.3. “Guarantor” means that person/persons, or entity who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4. “Goods” shall mean Goods supplied by Think Trade Services to the Client (and shall include any supply of Services as hereinafter defined) and are as described on the estimate, quotation, work order or other form as provided by Think Trade Services to the Client.
1.5. “Services” shall mean all Services supplied by Think Trade Services to the Client and includes any advice, recommendations and labour (and shall include any supply of Goods as defined previously).
1.6. “Price” shall mean the price payable for the Goods as agreed between Think Trade Services and the Client in accordance with clause 5 of this contract.
2. Application of these terms and conditions to consumers.
2.1. Clause 9 (Defects) and clause 10 (Warranty) shall NOT apply to the Client where the Client is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Client is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
3. Acceptance
3.1. Any instructions and acceptances received by Think Trade Services from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Think Trade Services 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 approval of Think Trade Services
3.4. The Client shall give Think Trade Services not more than seven (7) days prior written notice of any proposed change of ownership of the Client or 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 Think Trade Services as a result of the Client’s failure to comply with this clause.
4. Price And Payment
4.1. At Think Trade Services sole discretion the Price shall be either:
4.1.1. as indicated on invoices provided by Think Trade Services to the Client in respect of Services supplied; or
4.1.2. Think Trade Services quoted Price (subject to clause 4.2) which shall be binding upon Think Trade Services provided that the Client shall accept Think Trade Services quotation in writing within thirty (30) days.
4.2. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works or time required due to hidden or unidentifiable difficulties beyond the reasonable control of Think Trade Services such as hard rock barriers below the surface, iron reinforcing rods in concrete and delivery lead times on goods) will be made in writing and charged for on the basis of Think Trade Services quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion or by written agreement by Think Trade Services.
4.3. At Think Trade Services sole discretion a deposit may be required.
4.4. Think Trade Services may submit a payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has beenfinally agreed between the parties, and the value of materials delivered to the site but not installed.
4.5. At Think Trade Services sole discretion:
4.5.1. Payment for goods shall be due on delivery of the Goods to client; or
4.5.2. Payment for approved Clients shall be made by installments in accordance with Think Trade Services payment schedule.
4.6. Time for payment for the Goods shall be stated on the invoice, quotation or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
4.7. Payment will be made by cash, or by bank cheque, or by direct credit, or by any other as agreed to between the Client and Think Trade Services (all agreed methods must be approved in writing prior to commencement services).
4.8. GST and other taxes and duties that may be applicable shall be added to the Price by law except when they are noted included in the Price.
5. Delivery Of Goods
5.1. At Think Trade Services sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (Goods are delivered by Think Trade Services or Think Trade Services chosen supplier).
5.2. The costs of delivery are included in the Price.
5.3. When Notified 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 Think Trade Services shall be entitled to charge a fee for redelivery.
5.4. 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 and do so at their own risk.
5.5. Think Trade Services may deliver Goods by separate installments. Each installment shall be invoiced and paid in accordance with the provisions in these terms and conditions as stated above.
5.6. The failure of Think Trade Services to deliver shall not entitle either party to treat this contract as repudiated.
5.7. Think Trade Services shall not be liable for any loss and/or damage whatever due to failure by Think Trade Services to deliver the Goods (or any of them) promptly or at all due to circumstances beyond the control of Think Trade Services.
6. Risk
6.1. If Think Trade Services retains ownership of any Goods nonetheless, all risk for the Goods passes to the Client on delivery and acceptance of quote.
6.2. If any of the Goods are damaged, destroyed or stolen following delivery but prior to ownership passing to the Client, Think Trade Services is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Think Trade Services is sufficient evidence of Think Trade Services rights to receive the insurance proceeds without the need for any person dealing with Think Trade Services to make further enquiries.
6.3. 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 hereto. In the event that any of Think Trade Services’ equipment becomes lodged in the Client’s faulty drain it shall be removed at the expense of the Client.
7. Underground Locations
7.1. Prior to Think Trade Services commencing any work the Client must advise Think Trade Services of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, Telstra cables, fibre optic cables and any other services that may be on site. In the event a client does not know these locations they must employ a contractor to locate and provide a clearly marked document of services within site.
7.2. Whilst Think Trade Services will take all care to avoid damage to any underground services the Client agrees to indemnify Think Trade Services 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 7.1.
8. Title
8.1. Think Trade Services and Client agree that ownership of the Goods shall not pass until;
8.1.1. The Client has paid Think Trade Services all amounts owing for the particular Goods
8.1.2. The Client has met all obligations due by the Client to Think Trade Services in respect of all contracts between Think Trade Services and the Client.
8.2. Receipt by Think Trade Services 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 recognised and until then Think Trade Services’ ownership or rights in respect of the Goods shall continue.
8.3. It will be also agreed that:
8.3.1. Until time that ownership of the Goods shall pass from Think Trade Services to the Client Think Trade Services may give notice in writing to the Client to return the Goods or any of them to Think Trade Services. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease.
8.3.2. Think Trade Services shall have the right of stopping the Goods in transit whether or not delivery has been made.
8.3.3. If the Client fails to pay for or return the Goods to Think Trade Services then Think Trade Services or Think Trade Services ‘s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods.
8.3.4. The Client is only a bailee of the Goods and until such time as Think Trade Serviceshas received payment in full for the Goods.
8.3.5. Think Trade Services can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client.
8.3.6. Until such time that ownership of the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Think Trade Services will be the owner of the end products.
9. Defects
9.1. The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Think Trade Servicesof any defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Think Trade Services an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. Should 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 Think Trade Services has agreed in writing that the Client is entitled to reject, Think Trade Services ‘s liability is limited to either (at Think Trade Services discretion) replacing the Goods or repairing the Goods unless covered by manufactures warranty.
9.2. Goods will not be accepted for return other than in accordance with 9.1 above.
10. Warranty
10.1. Subject to the conditions of warranty set out in clause 10.2 Think Trade Services warrants that if any defect in any workmanship of Think Trade Services becomes apparent and is reported to Think Trade Services within twelve (12) months of the date of delivery (time being of the essence) then Think Trade Services will either (at Think Trade Services’ sole discretion) replace or remedy the workmanship.
10.2. The conditions applicable to the warranty given by clause 10.1 are;
10.2.1.1. The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through
10.2.1.2. Failure on the part of the Client to correctly maintain any Goods
10.2.1.3. Failure on the part of the Client to follow any instructions, guidelines provided.
10.2.1.4. Continue to use of any good after defect becomes apparent.
10.2.1.5. Fair wear and tear, any accident or act of God
10.2.1.6. Used other than intended use or mistreated good.
10.2.2. The warranty shall cease and Think Trade Services shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Think Trade Services written approval.
10.2.3. In respect of all claims Think Trade Services shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Chest’s claim.
10.2.4. For Goods not manufactured by Think Trade Services, the warranty shall be the current warranty provided by the manufacturer of the Goods. Think Trade Services 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.
11. Intellectual Properly
11.1. Where Think Trade Services has, drawn, designed or written Goods for the Client, then the copyright in the concept, designs, drawings and documents shall remain property of Think Trade Services, and shall only be used by the Client upon written approval by Think Trade Services.
11.2. The Client warrants that all designs or instructions to Think Trade Services will not cause Think Trade Services to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnity Think Trade Servicesagainst any action taken by a third party against Think Trade Services in respect of any such infringement.
12. Default and Consequences from Default
12.1. Interest on overdue invoices shall accrue daily from the date of payment due, until the date of payment, at a rate of percent (3%) per calendar month and such interest shall compound monthly.
12.2. If the Client defaults in payment of any invoice when due, the Client shall indemnify G Think Trade Services from and against all costs and disbursements incurred by Think Trade Services in collecting the debt including legal costs on a solicitor.
12.3. Without prejudice to any other remedies Think Trade Services may have, if at any time the Client Is in breach of any obligation (including those relating to payment), Think Trade Servicesmay suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Think Trade Services will not be liable to the Client for any loss or damage the Client suffers because Think Trade Services has exercised its rights under this clause
12.4. If any account remains overdue after thirty (30) days then an amount of the greater of fifty dollars ($50) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars 200.00 shall be levied for administration fees which sum shall become immediately due and payable.
13. Cancellation
13.1. Think Trade Services 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 Think Trade Services shall repay to the Client any sums paid in respect of the Price. Think Trade Services shall not be liable for any loss or damage whatever arising from such cancellation.
13.2. In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Think Trade Services (including, but not limited to, any loss of profits) up to the time of cancellation.
14. Privacy Act 1988
14.1. The Client and/or the Guarantor/s agree for Think Trade Services to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Think Trade Services.
14.2. The Client and/or the Guarantor/s agree that Think Trade Services may exchange information about the Client and the Guarantor/s 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:
14.2.1. To assess an application by Client
14.2.2. To notify other credit providers of a default by the Client
14.2.3. 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.
14.2.4. To assess the credit worthiness of Client and/or Guarantor/s.
14.3. The Client consents to Think Trade Services being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1) (h) Privacy Act 1988).
14.4. The Client agrees that personal credit information provided may be used and retained by Think Trade Services for the following purposes and for other purposes as shall be agreed between the Client and Think Trade Services or required by law from time to time:
14.4.1. Analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods.
14.4.2. Processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client.
14.4.3. 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.
14.5. Think Trade Services may give information about the Client to a credit reporting agency for the following purposes
14.5.1. To obtain a consumer credit report about the Client.
14.5.2. Allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
15. Building and Construction Industry Security of Payments Act 1999
15.1. If there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
15.2. 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.
16. General
16.1. 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.
16.2. 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 New South Wales.
16.3. Think Trade Services shall be under no liability whatever to the Client for any indirect loss and/or expense(including loss of profit) suffered by the Client arising out of a breach by Think Trade Services of these terms and conditions.
16.4. In the event of any breach of this contract by Think Trade Services the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
16.5. The Client shall not be entitled to get off against or deduct from the Price any sums owed or claimed to be owed to the Client by Think Trade Services.
16.6. Think Trade Services may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.7. The Client agrees that Think Trade Services may review these terms and conditions at any time. Iffollowing 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 Think Trade Services notifies the Client of such change in writing.
16.8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
16.9. The failure by Think Trade Services to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Think Trade Services right to subsequently enforce that provision.
17. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
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 applicabl
