Terms of Service
We own the business trading as “E-Static Powder Coating” ABN 25 612 054 065.
- You wish to acquire our services and we agree to provide those services for you on our terms of service set out below.
- Where applicable, the guarantor(s) agree(s) to guarantee the performance of your obligations contained in these terms of service.
1. Our Intention
1.1 These terms of service apply on every occasion we provide services of any type for you unless agreed otherwise in writing between us. Acceptance of our services by you verifies that these terms of service apply and are binding on you and the guarantor(s).
1.2 If you provide us with an order, we are not deemed to have accepted the order until it is confirmed in writing by us at our discretion.
1.3 Annexure “A” and “B” hereto form a part of the terms of service and you acknowledge that you have been provided with a copy of these annexures.
2. Orders, Quotes and our Pricing
2.1 The price for the services will be as:-
(a) quoted by us in writing to you; or
(b) specified in an order accepted by us in the way described in clause 1.2.
If we have not provided a written quote or you have not furnished us with an order, then our standard price list will apply. If we have provided you with a quote, you acknowledge that the quote and the prices contained in the quote lapses if not accepted within thirty (30) days.
2.2 All prices are exclusive of any delivery costs, GST, as well as any other taxes, tariffs, duties or charges levied. You agree to pay any such costs, taxes, tariffs, duties or charges irrespective of whether they are directly charged to you or us.
2.3 We may amend or withdraw a quote for the provision of services at any time before it is accepted by you;
2.4 You may not vary or cancel an accepted order unless you:-
(a) first obtain our written consent; and
(b) indemnify us for any loss or damage caused by the variation or cancellation.
2.5 Our quote is subject to change or additional surcharge in accordance with the provisions of Annexe A.
3. Promises to each other
3.1 We will:-
(a) act in good faith in providing the services within the agreed timeframe or if no timeframe has been agreed, then in a timely manner; and
(b) not be liable to you for any loss or damage should we be unable to provide the services in the agreed timeframe or where no timeframe is agreed, in a timely manner, if the delay or non-performance is due to circumstances beyond our reasonable control.
In the event of delay in the provision of the services the due date will be deferred for a period equal to the time lost by reason of the intervening cause or circumstance.
3.2 You must pay all amounts due and payable to us without deduction or set-off whatsoever.
3.3 In relation to services that we perform for you, you will acquire ownership of the tangible outcome of those services so long as you are not in default of the terms of service and you have paid all monies owing to us.
4. Payment, Credit and Interest
4.1 You agree to pay us all monies which are owing for services we provide you, on the date of the invoice issued by us in respect of those services, unless we have approved a credit trading account for you.
4.2 You agree that we may:
(a) impose a surcharge on you for payments by credit card; and
(b) charge interest at the rate of 8% per annum calculated from the due date of payment until the actual date of payment.
5. Delivery and Storage
5.1 Unless the delivery of goods to you after the completion of the services is included in our quote you must arrange for the collection of the goods in a timely manner after completion of the services.
5.2 We will allow three (3) business days after notification that the services have been completed for the goods to be collected, if they are not collected within this timeframe we will charge an additional fee for storage.
5.3 We do not accept any liability for loss or damage to goods stored beyond the three (3) business day limit.
5.4 If our quote provides for delivery of the goods after the services are completed, we will wrap the goods in an effort to minimise damage caused during transit. However we do not warrant that no damage will be caused and we accept no liability for any damage caused during transit.
5.5 We cannot guarantee delivery times or dispatch dates and accordingly we do not accept any liability for any loss caused due to delays in goods being delivered to you.
6. Lien and sale
6.1 You grant us a lien over any goods for all costs, charges and expenses which become due and payable to us by you on any account of the Services.
6.2 You agrees that we may at any time detain, withhold or store the goods until such amounts as are outstanding to us are paid in full.
6.3 You grant a charge in favour of us over the goods in respect of and all amounts due and payable to us.
6.4 Where any sum due to us remains unpaid, we are entitled, on giving twenty-eight (28) days’ notice in writing to you, (without liability to you) to sell or dispose of the goods by public auction or by private treaty at your risk and expense and apply the proceeds of any such sale or disposal in or towards the payment of the sums due and you indemnify us for any loss or damage which you may suffer as a result of us taking such action.
7. Warranties and Limitation of our Liability
7.1 Except as required by law, we give no warranty in relation to any services provided to you. You acknowledge that you have not relied on any representations or warranty which may be made on our behalf.
7.2 All warranties, guarantees and conditions implied at common law or under statute are expressly excluded from these terms of service unless such exclusion would be illegal or void.
7.3 To the extent permitted by law, liability under these terms of service or a warranty, guarantee or condition which cannot legally be excluded is limited to:
(a) the supply of the services again; or
(b) the payment of the cost of having the services supplied again.
7.4 Except as expressly provided in these terms of service, we are not liable for any consequential loss or damage (including, loss of profits, revenue, business opportunities, anticipated savings and damage to goodwill).
7.5 Annexure B of these terms of service sets out particular limits of our liability.
8.1 You indemnify us for any loss or damage suffered by us which results from:
(a) any breach of these terms of service by you or any negligence which includes your failure to follow or non observance of the recommendations contained in the Annexures;
(b) any breach of law by you; or
(c) the death or injury to any person or damage to any property arising from the performance by you of your obligations under these terms of service.
9. Default and Termination
9.1 You may give notice to us at any time that you wish to terminate our agreement. However if this occurs, you agree to pay our fees for work done, including all reasonable and unavoidable costs incurred by us that are attributable to termination.
9.2 We may terminate this agreement without incurring any liability to you if there has been a substantial increase in the cost of providing the services between the date of this agreement and the date of provision arising from circumstances beyond our reasonable control and you and we cannot agree on an adjusted price for the services.
9.3 Without prejudice to any of our accrued rights or remedies:-
(a) if an insolvency event occurs, we may immediately terminate this agreement upon notice to you; and
(b) if an event of default occurs, then:
(i) any monies payable by you to us whether due for payment or not will become immediately due and payable;
(ii) we may cancel any outstanding order or arrangement with you; and
(iii) we may terminate this agreement immediately upon the event of default not being remedied within ten (10) business days of the receipt of a notice from us requesting the event of default to be remedied.
10. Guarantee and Indemnity
10.1 The guarantor(s) have requested that we enter into these terms of service with the customer and we have agreed to do so in consideration of the guarantor(s) providing this guarantee and indemnity which is given by signing these terms of service.
10.2 The guarantor(s) jointly and severally guarantee the due and prompt performance of the customer of all its obligations under these terms of service including the payment of all monies payable.
10.3 The guarantor(s) indemnify and agree to keep us indemnified against any loss and damage we may suffer resulting from any failure of the customer to perform its obligations under these terms of service.
10.4 If the customer makes default in the due and punctual payment of the all monies due and owing at any time to us the guarantor(s) will pay and make good to us on demand:
(a) all monies due and owing by the customer;
(b) any costs (including legal costs on an indemnity basis), loss or damage incurred or suffered by us in consequence of the customer failing to pay the said monies to us; and
(c) interest at the rate of 8% per annum from the due date until the date of payment.
10.5 This guarantee and indemnity will not be affected by:
(a) an assignment by us of our interest in these terms of service;
(b) a variation to the terms of service;
(c) termination of these terms of service;
(d) the granting of any time, forbearance or other concessions by us to the customer or the guarantor(s);
(e) the release or death of one or more of the guarantor(s).
10.6 The liability of the guarantor(s) will continue until the customer has paid all money and performed all of its obligations under the terms of service.
11.1 Any notices to each other required by these terms of service must be in writing and sent to the address contained in the reference table.
11.2 Notices are taken to be received:
(a) if hand delivered, at the time of delivery;
(b) the case of a posted letter, on the second business day after posting; and in the case of a facsimile or email, when the confirmation of receipt from the receiving machine is received by the sender.
(a) “event of default” means any one of the following:
(i) you cease or threaten to cease to carry on business;
(ii) an insolvency event;
(iii) you fail to pay any invoice or demand for payment issued by us;
(iv) you breach your obligations under these terms of service and the breach is not remedied within ten (10) business days; or
(v) your cheque to us is dishonoured for payment.
(b) “goods” means any personal property owned or supplied by the customer in connection with the services supplied by us;
(c) “GST” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(d) “insolvency event” means any of the following events in relation you or a guarantor:
(i) being in liquidation or provisional liquidation or under administration;
(ii) having a controller (as defined in the Corporations Act 2001 (Cth) appointed to any of your property;
(iii) being taken under s.459F(1) of the Corporations Act 2001 (Cth) for failing to comply with a statutory demand;
(iv) being unable to pay your debts as they fall due or where the other party believes, on reasonable grounds, that you are insolvent;
(v) taking steps that are reasonably likely to result you becoming insolvent under administration as defined in s.9 of the Corporations Act 2001 (Cth);
proposing to enter or entering into a compromise or arrangement with, or assignment for, the benefit of your members or creditors; or
(vii) being wound up or dissolved.
(e) “law” means the Competition and Consumer Act 2010 (Cth) (as amended from time to time) and any other applicable law;
(f) “services” means the services carried out by us.
(g) “terms of service” means this agreement together with any quote, order or credit application which may be annexed to these terms of service;
(h) Unless expressed to the contrary, in these terms of service:
(i) “you” means the customer who signs this agreement and “we” or “us” means the supplier of the services.
(ii) a reference to any party includes that party’s legal personal representatives, successors or assigns;
(iii) if words or phrases are defined and appear in bold in these terms of service, other grammatical forms have corresponding meanings;
(iv) a reference to a monetary amount means that amount in Australian currency;
(v) “includes” means “includes without limitation”;
(vi) “conduct” includes any admission, statement or undertaking, whether or not in writing;
(vii) a right or obligation of any two (2) or more persons confers that right or imposes that obligation jointly
Any obligations in these terms of service which are of a continuous nature or which are not fully satisfied and discharged on fulfilment or termination of an order, will continue to apply.
13.2 No Waive
Our failure to enforce at any time, or for any period of time, any term of service will not constitute a waiver of such term and will in no way affect our right later to enforce these terms of service.
13.3 Entire Agreement
These terms of service represent the entire agreement between the parties and supersede all prior negotiations, arrangements, agreements and understandings, either verbal or written between us.
We may assign our interest in these terms of service by providing written notice to you.
13.5 Variations and Errors
No variation to these terms of service is enforceable unless it is in writing and signed by both of us and the guarantor/s. Any clerical errors are, however, subject to correction by us.
Any provision of these terms of service which are found to be invalid or unenforceable are to be severed but all other provisions shall remain unaffected.
These terms of service may be signed in counterparts (meaning at different times, in different places, by the respective parties). The counterparts, once exchanged, constitute binding terms of service on both of us.
13.8 Governing Law
These terms of service are governed by the laws of Queensland and the Commonwealth of Australia and both of us submit to the non-exclusive jurisdiction of the courts of Queensland.