Special Note: All works carried out by DG Group either quoted or otherwise shall be subject to these Terms and Conditions in full. It is the sole responsibility of the customer/customers to read the Terms and Conditions carefully and pursue legal advice if required before engaging DG Group.
APPLICATION OF THESE TERMS AND CONDITIONS
The Customer agrees that prior to placing an order with the Contractor, the Customer has read and agreed to the terms and conditions as set out hereunder.
For the purposes of this agreement,
- ‘the Contractor’ is DG Green Plumbing and Facilities Maintenance trading as DG Group Australia. DG Group Australia shall mean DG Group Pty Limited, or any agents, contractors and employees hereof and its successors and assigns and any person acting on behalf of and with the authority of DG Group Australia;
- ‘the Customer’ is the person or business entity named on the Work Authorisation provided by the Contractor, any person acting on behalf of & with the authority of the customer, or any person purchasing products & services from DG Group;
- ‘Goods’ means plumbing / maintenance products and associated components as more particularly described on the Contractor’s quotes, tax invoices and other paperwork supplied to the Customer;
- ‘Site’ means the place where the Contractor’s work will be carried out; and
- ‘Australian Consumer Law’ means the Australian Consumer Law set out in schedule 2 of the Competition & Consumer Act 2010 (Cth) as amended from time to time.
- The Customer must, within the time specified in the Contractor’s quote and/or work authorisation form, pay the Contractor the total amount set out in the invoice.
- Progress Payments – the customer agrees to make progress payments as requested. The Contractor reserves the right to halt any further work until such time as the outstanding payment is forthcoming. In addition, interest (as specified in 3.3) may be charged. The customer agrees to pay the full invoice amount on the completion of works.
- Variations within a period subject to a progress payment shall be payable at that time and no later
- Electronic Funds Transfers & cash payments accepted only.
- Interest – the Contractor may charge interest at the rate of ten percent (2.5%) calculated on a daily basis on amounts not paid within the time specified in the agreed quote and/or work authorisation form. Any payments which fall overdue shall incur a late fee of $55.00 (ex GST) and 2.5% compounding interest daily until paid in full.
- Damages – the Customer must pay to the Contractor any costs, expenses or losses incurred by the Contractor as a result of the Customer’s failure to pay to the Contractor all sums outstanding as owed by the Customer to the Contractor including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
- All quoted works are subject to variations as required & are at the discretion of DG Group Australia to carry out & complete works to Australian & Safety Standards. All variations will incur further fees & charges in addition to the original quoted amount.
- DG Group Australia fees & charges are subject to change without notification to the customer.
- Do and Charge – the hourly rate for ‘Do and Charge’ work may change should the Contractor hit a major obstacle including but not limited to solid rock, requiring the hire of special equipment and if necessary an operator to complete the work. The Customer shall be responsible for all costs and expenses associated with such a hire and a daily hire rate shall apply.
- Building and Construction Industry Payments Act 2004 – At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Goods or services, then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
- Additional fees & charges shall apply outside of normal business hours 0700 to 1600 Monday to Friday.
- The Customer accepts that all invoices shall be provided in categories of labour, materials & GST only. Itemised accounts will not be issued unless otherwise agreed prior.
The Customer shall:
- ensure the Customer or its representative remains on the job site during the performance of the Contractor’s work;
- sign off that the work has been completed by the Contractor in accordance with the quote or work authorisation form; and
- indemnify the Contractor from any claims or charges relating to damage and/or loss of property from the Site if the Customer has not complied with the conditions specified in this clause.
Delivery of Goods:
- Delivery of the Goods shall be made to the Customer’s nominated address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Delivery of Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement. The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated. The Contractor shall not be liable for any loss or damage whatever due to the failure by the Contractor to deliver the Goods (or any part of them) promptly or at all.
- The Customer shall indemnify the Contractor from any costs incurred should Site access not be available and subsequently the Contractor is unable to make delivery.
- All goods shall remain the property of DG Group Australia until such time payment is received in full.
RETENTION OF TITLE
- Title – Notwithstanding the delivery or installation of the Goods, title in any particular Goods shall remain with the Contractor until the Customer has paid and discharged any and all monies owing pursuant to any invoice issued by the Contractor for the Goods, including all applicable GST and other taxes, levies and duties. Where the Goods have been onsold by the Customer, the Customer will be taken to hold the proceeds of sale of such Goods upon trust for the Contractor and to account to the Contractor for these proceeds. Any payment made by or on behalf of the Customer which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge the Contractor’s title in the Goods nor the Customer’s indebtedness to the Contractor and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
- Bailment – the Customer acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices for the Goods is made pursuant to clause 3 and until that time:
a) the Customer must not encumber or otherwise charge the Goods; and
b) the Customer shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery or installation of the Goods to the Customer.
- Repossession – the Customer hereby irrevocably grants to the Contractor the right, at its sole discretion, to remove or repossess any Goods from the Customer and sell or dispose of them, and the Contractor shall not be liable to the Customer or any person claiming through the Customer and the Contractor shall be entitled to retain the proceeds of any Goods sold and apply same towards the Customer’s indebtedness to the Contractor.
If the Customer commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then the Contractor may, without prejudice to any other remedies it may have, repossess any Goods delivered to the Customer on any account which has not been paid in accordance with the terms and conditions herein and commence proceedings to recover the balance of any monies owing the Contractor by the Customer
The risk in the Goods shall pass to the Customer upon delivery/installation of the Goods to the Customer or to a third party nominated by the Customer.
- The Customer shall ensure that the Contractor has clear and uninterrupted access to the Site until the Work has been completed and the Contractor paid in full.
- The Customer shall indemnify the Contractor from additional costs or penalties if the completion of the Work is delayed due to interrupted Site access.
- DG Group Australia may cancel these terms & conditions or cancel delivery of goods & services at any time giving at least 24 hours written advice. DG Group Australia shall not be liable for any loss or damage what-so-ever arising from such cancellation.
- The customer must provide DG Group Australia with at least 3 working days’ notice in writing of any cancellation of works. Failure to do so will incur 30% payment of the original quoted / invoice amount payable by the customer or the occurred costs, whichever is greater.
- Deposit – the Contractor may require a deposit from the Customer, and if a deposit is so requested by the Contractor the Customer acknowledges the Contractor is under no obligation to undertake any Work as requested by the Customer until the deposit is received by the Contractor in full and when all details pertaining to contract are finalised. In the event of default as to payment owing to the Contractor on the part of the Customer, the Contractor shall be entitled to forfeit the deposit and claim any profit or margin contemplated by or allowed for in the contract in addition to any remedy available to the Contractor at law or in equity. Placing a deposit with DG Group Australia secures & confirms your job. Where a deposit has been paid to DG Group, deposits are non-refundable.
Should Work at the Site be held up for reasons beyond the Contractor’s control, then the Customer shall indemnify the Contractor from any increased costs, losses or expenses due to such prolongation.
- Any warranty as to the Goods on the part of the Customer shall be limited to the written warranty provided by the manufacturer to the Customer on or before installation of the Goods.
- The Contractor reserves the right to make null and void the warranty should the Goods be modified, altered, damaged or put to any undue stress other than in the way the Goods were designed to perform.
- The Contractor shall not provide warranty on Goods supplied by the Customer to be used in the Work by the Contractor.
- In respect of all claims the Contractor shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customer’s claim.
- Warranty shall be valid for 12 months (unless otherwise stated) as per industry regulations from invoice date. Warranty shall only be valid on exact location & works as carried out by DG Group. Customer must provide original invoice for proof of works.
- All valve & valve type parts as well as any specified items installed by DG Group Australia must be serviced annually by DG Group Australia. Failure to do so shall void all warranty. It is the sole responsibility of the customer to arrange an appointment.
- The Customer shall inspect the goods & works on completion & must report any defects to parts or installation works within 48 hours in writing to DG Group Australia of any alleged defects, shortage in quantity or damage. The customer shall afford DG Group Australia an opportunity to inspect the alleged damage / defect within 7 working days from date of written notification & give DG Group Australia the opportunity to make good to Australian & reasonable standards within 14 working days.
- No warranty shall be provided on blocked sewer, drainage or storm water.
- Where DG Group Australia have designed or drawn Goods for the Customer, then the copyright in those designs & drawings shall remain vested in DG Group Australia, & shall only be used by the Customer at DG Group’s discretion & with written consent to do so.
- The customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him/her by any servant or agent of DG Group Australia & the Customer acknowledges that he/she buys the services of DG Group Australia relying solely upon his/her own skill & judgment & that DG Group Australia shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Customer & shall not be transferable to any subsequent Customer.
- Contractor Supply Quote – the Contractor shall give the Customer a quote specifying the work required to be done in order to fulfil the Customer’s instructions and an estimate of the Contractor’s charge for the performance of such work.
- Acceptance by the Customer – where the Contractor has given the Customer a quote, the Contractor need not commence work until the quote has been accepted by the Customer.
- The Customer shall accept the quote by signing and returning a true copy of the quote and/or work authorisation form accompanied with a purchase order number (if applicable). A signed facsimile or scanned copy of the quote will be binding for the purposes of these terms and conditions.
- Quotes are valid for sixty (60) days only, unless an extension has been authorised by the Contractor.
- In acceptance of the quote, the Customer warrants that it has not relied on any representation by the Contractor other than as supplied in writing in the quote.
DIAL BEFORE YOU DIG
- The Customer agrees to assist the Contractor by obtaining plans of underground pipes and cables on the Site at least 2 (two) clear working days before the Contractor’s proposed work on the Site. These plans can be requested from the DBYD (Dial Before You Dig) website at or phone 1100.
- Should the Customer fail to provide the Contractor with the appropriate plans for the Site as specified in clause 6.1, the Customer will indemnify the Contractor from any claim for costs, expenses or losses from a third party, being the asset owner
The Customer will indemnify DG Group Australia & keep DG Group Australia indemnified against any liability, loss, claim or proceedings of any kind (whether arising under statute or common law) arising from services which are buried or unseen being disturbed or damaged. DG Group Australia will not be liable for any repair work & any repair work required will be paid at the Customers expense. Such liability, loss, claims or proceedings includes but is not limited to;
- Damage to the property, real or personal;
- Death or personal injury; &
- Consequential or economic loss of any kind.
ROCK & FILLED GROUND
- Unless specifically included in written quotes &/or estimates, rock excavation, dewatering or supportive work such as pier & beams for filled or made up ground will be charged out as a variation to the original price. Quotation is based on excavation of clean soils only, unless otherwise specifically stated in writing.
- Existing soils shall be returned to excavated areas where possible & ground shall be left filled. Landscaping and concrete works are not included in quotation unless specified be in writing. All concrete, paving and landscape works including shrub / plant & lawn replacement will be treated as a variation as set out in 2.5 of this document.
DRAINS & SEWER
- The Customer understands that the presence of plant/tree root growth &/or blockages generally indicates damaged pipes. Additionally, the Customer agrees that blocked drains, sewer pipes & storm water lines cannot be permanently fixed by simply removing “plant/tree root growth” or cleaning the drain. Therefore, no warranty is provided in relation to future blockages regardless of timeframe reoccurring whether in the same location or other drainage / sewer lines within the same property.
- The Customer acknowledges that Close Circuit Television (CCTV) is a specialist piece of equipment which may or may not be used at DG Group Australia sole discretion to identify the source of the blocked drain. Should CCTV equipment be used the Customer acknowledges that additional charges will be imposed.
- Should any Plumber’s equipment become lodged or damaged in the customers drain it will be removed & / or repaired at the Customers expense (includes materials, parts & labour) or monetary compensation to the total replacement of same or higher quality value will become payable to DG Group Australia immediately.
- Non-excludable Rights – the parties acknowledge that, under the Australian Consumer Law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to the provision of the goods and services which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
- Disclaimer of Liability – the Contractor disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-Excludable Rights. To the extent permitted by law, the liability of the Contractor for a breach of a Non-Excludable Right is limited, at the Contractor’s option, to the supplying of the Goods and/or any services again or payment of the cost of having the Goods and/or services supplied again.
- Indirect Losses – notwithstanding any other provision of these Terms and Conditions, the Contractor is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Customer for: a) any increased costs or expenses; b) any loss of profit, revenue, business, contracts or anticipated savings; c) any loss or expense resulting from a claim by a third party; or d) any special, indirect or consequential loss or damage of any nature whatsoever caused by the Contractor’s failure to complete or delay in delivering the Goods or completed the work.
- Force Majeure – the Contractor will have no liability to the Customer in relation to any loss, damage or expense caused by the Contractor’s failure to deliver the Goods or complete the work as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the Contractor’s normal suppliers to supply necessary material or any other matter beyond the Contractor’s control
- If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying & providing details of the dispute. Within seven (7) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute.
- At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered or sent by certified mail to the other party refer such dispute to arbitration.
- Without prejudice to either party’s rights under the Building and Construction Industry Payments Act 2004 and the Subcontractors’ Charges Act 1974, either party may refer any dispute under, or arising out of, this contract to the Institute of Arbitrators & Mediators Australia, for resolution under the Rules of the Construction Industry Dispute Resolution Scheme. Each case will first be referred to a Conciliator appointed by the Institute unless each party wishes to proceed directly to arbitration. If the conciliation is not satisfactorily concluded within six weeks or if the parties want to proceed directly to arbitration, the Institute will appoint an Arbitrator who will make a final and binding award.
COMPLIANCE WITH LAWS
- The Customer & the Contractor shall comply with the provisions of all statutes, regulations & bylaws of government, local & other public authorities that may be applicable to the works.
- The Customer shall obtain (at the expense of the Customer) all licenses & approvals that may be required for the works? (councils or other governing agents).
- The Customer agrees that the site will comply with any occupational health & safety laws relating to building/construction sites & any other relevant safety standards or legislation.
- Privacy The Customer hereby authorises the Contractor to collect, retain, record, use and disclose consumer and/or commercial information about the Customer, in accordance with the Privacy Act 1988 and subsequent amendments, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Contractor, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
- The Contractor may give information about the Customer to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Customer’s credit file. This information may be given before, during or after the provision of credit to the Customer and will be in accordance with the Privacy Act 1988 and subsequent amendments
- No Waiver A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
- Severability Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down, then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
- Governing Law and Jurisdiction These Terms and Conditions are governed by the law in force in the State or Territory in which the Contractor’s premises are located and the parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions.
- DG Group Australia shall not be held liable for any such delays for work not being completed due to weather conditions, shortage of labour hire, machinery or materials outside the direct control of DG Group Australia.
- In the event of any breach of this contract by DG Group Australia the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of DG Group Australia exceed the Price of the Goods.
- DG Group Australia reserves the right to review & make changes to these terms & conditions at any time