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Here is a summary of key clauses:
Acceptance:- The agreement applies to all services provided by PE&I, taking precedence over any other terms, and is considered accepted once a client places an order.
Quotes:- PE&I provides fee proposals valid for 30 days. Work begins once the quote is accepted, and PE&I reserves the right to amend the quote before work starts.
Orders:- Orders are submitted via email or as directed by PE&I. PE&I may refuse services if credit limits are exceeded or if prior payments are overdue. Cancellation of orders may result in indemnification.
Variations:- Any changes to the scope of services require written agreement and may result in additional charges and delays.
Additional Charges:- These may arise due to inadequate or late information from the client or cancellations.
Invoicing and Payment:- Invoices are issued either before or after work is completed, and payments are due by the date specified. Interest on overdue amounts is 15% per month, and legal fees for collection of debts are recoverable.
Title and Risk:- Ownership of services remains with PE&I until payment is made in full, although the client assumes risk upon dispatch.
Intellectual Property:- PE&I retains intellectual property rights to works created unless otherwise agreed, though a non-exclusive license for use is granted upon full payment.
Default:- Various default events trigger termination rights for PE&I, including failure to pay, insolvency, or breach of agreement.
Limitation of Liability:- PE&I’s liability is limited to the amount paid for services, and they disclaim liability for indirect damages or losses.
Indemnity:- The client indemnifies PE&I against any claims arising from services provided.
Dispute Resolution:- Disputes are to be resolved through negotiation or mediation before legal action is taken.
Confidentiality:- Both parties must keep confidential any sensitive information and comply with privacy laws.
Further Assurances:- Both parties must execute necessary documents to give effect to the agreement.
This document outlines the terms governing services, payment, liability, and dispute resolution, among other provisions.
BackgroundIt is agreed as follows:
(a) Subject to the parties executing an engagement agreement, this Agreement applies to all transactions between PE&I and the Client relating to the provision of the Services.
(b) The terms of this Agreement take precedence over any terms of trade contained in any document of the Client.
(c) The Client will be deemed to have accepted these terms and conditions by:
(a) PE&I may provide the Client with a fee proposal detailing the scope of services to be provided (“Quote”). Any Quote issued by PE&I is valid for sixty (30) days from the date of issue.
(b) Following provision of a Quote to the Client, PE&I is not obliged to commence work until the Quote has been accepted by the Client.
(c) PE&I reserves the right to amend any Quote before the work has commenced.
(d) As a condition of acceptance of a Quote, PE&I may require the Client to pay a deposit as a part payment of the fees detailed in the Quote.
(e) PE&I has no obligation to provide any Services not included in the scope of services set out in the Quote.
(f) The Client acknowledges that any additional Services or considerations which the Client may request (either before or after the date of the Quote), and which are outside of the scope of services described in the Quote, shall constitute a variation pursuant to clause 4.
(a) Unless otherwise agreed by PE&I, every job Order by the Client for the provision of Services must be submitted:
(i) by email to the email address shown in a Quote; or
(ii) otherwise as reasonable directed by PE&I, from time to time.
(b) PE&I may in its absolute discretion refuse to provide Services pursuant to an Order where:
(i) credit limits cannot be agreed upon or have been exceeded; or
(ii) payment for Services previously provided to the Client or any related corporation of the Client or to any other party who is, in the reasonable opinion of PE&I, associated with the Client under the same or another supply contract, has not been received by PE&I.
(c) Where a job Order is cancelled, the Client indemnifies PE&I against any expense or Losses incurred by PE&I as a result of the cancellation.
The Client may request that the scope of Services to be provided to the Client be varied by providing a request in writing to PE&I:
(a) any request for a variation must be agreed to in writing by PE&I in order to have effect;
(b) if the Client wishes to vary its requirements after a Quote has been prepared by PE&I or after the placement of a job Order, PE&I reserves the right to vary the cost of the Services to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates; and
(c) PE&I has an automatic extension of time for the provision of the Services equal to the delay caused by the variation.
The imposition of Additional Charges may occur as a result of:
(a) costs or delays incurred by PE&I as a result of reliance on inadequate or incorrect information or material provided by the Client;
(b) information or material supplied later than required by PE&I in order for it to provide the Services within the specified time frame (if any); or
(c) cancellation by the Client of an Order where cancellation results in costs or Loss to PE&I.
(a) Unless specified otherwise, all prices and amounts are shown in Quotes or invoices as exclusive of GST.
(b) Where no Quote has been provided by PE&I, the invoice amount for any work completed for the Client shall be calculated on a time-spent basis at the usual hourly rates of the relevant practitioner.
(c) PE&I may in its absolute discretion, issue a tax invoice to the Client in any one or more of the following ways:
(i) prior to commencing the provision of the Services, for a deposit; or
(ii) upon completion of the Services or any time thereafter for the amount of the job Order, less any deposit paid.
(d) The Client must pay any tax invoice issued by PE&I to PE&I by bank transfer or as otherwise agreed within the time frame set out in the tax invoice.
(e) If any invoice is due but unpaid, PE&I may withhold the provision of any further Services until overdue amounts are paid in full.
(f) PE&I may in its complete discretion apply any payment received from the Client to any amount owing by the Client to PE&I.
(g) The Client is not entitled to retain any money owing to PE&I notwithstanding any default or alleged default by PE&I of this Agreement. Nothing in this paragraph affects the Client's rights pursuant to a guarantee under the Australian Consumer Law.
(h) The Client agrees to pay PE&I on demand interest at the rate of 20% per annum on all overdue amounts owed by the Client to PE&I, calculated daily, commencing from the payment due date shown in the tax invoice.
(i) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of PE&I, are to be paid by the Client as a debt due and payable under this Agreement.
The Client and PE&I agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
(a) The Client warrants to PE&I that any documentation provided by the client is the latest and then current version of that document, such documentation may include, but is not limited to: services drawings, specifications, schedules, appendices, and any other relevant information required for accurate pricing and scope of works.
(a) Property and title in products and Services supplied to the Client under this Agreement does not pass to the Client until all money (including money owing in respect of other transactions between PE&I and the Client) due and payable to PE&I by the Client have been fully paid.
(b) Where Services are supplied by PE&I to the Client without payment in full, the Client:
(i) is a bailee of the products created by the Services until property in them passes to the Client; and
(ii) agrees that PE&I may repossess the product of any services if payment is not made prior to the due date shown on the invoice from PE&I.
(c) Notwithstanding that title in the services may not have passed, the risk of loss or damages to the Services and/or insurance responsibility for theft, damage or otherwise in respect of the Services will pass to the Client upon dispatch of the Services to the Client.
(a) Unless specifically agreed in writing between PE&I and the Client, all Intellectual Property Rights in any products or original works created by PE&I on behalf of the Client vest in and remain the property of PE&I.
(b) Subject to payment of all invoices due in respect of the Services, PE&I grants to the Client a perpetual, non-exclusive licence to use the works created or produced by PE&I in connection with the provision of Services under this Agreement for the purposes contemplated by the Order.
(c) Any use of PE&I Intellectual Property is used in adherence to the PE&I brand guidelines and must not be adjusted or reworked unless approved in writing by PE&I.
(a) The Client agrees that PE&I may at any time appoint or engage an agent or subcontractor to perform an obligation of PE&I arising out of or pursuant to this Agreement.
(b) PE&I has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from this Agreement.
(c) The Client may not assign, or purport to assign, any of its obligations or rights under this Agreement without the prior written consent of PE&I.
(a) The Client may not use or utilise any logo, image or advertising material of PE&I without first obtaining prior written consent of PE&I, including but not limited to content contained on PE&I website, Instagram account, Facebook page, blog content or other social medial.
(a) Each of the following occurrences constitutes an event of default:
(i) either party breaches or is alleged to have breached this Agreement for any reason (including, but not limited to, defaulting on any payment due under this Agreement) and fails to remedy that breach within seven (7) days of being given notice to do so;
(ii) the Client becomes Insolvent; or
(iii) the Client ceases or threatens to cease conduct of its business in the normal manner.
(b) Where an event of default by the Client occurs, PE&I may:
(i) terminate this Agreement;
(ii) terminate any one or all Orders and credit arrangements (if any) with the Client;
(iii) in accordance with this Agreement, repossess and re-sell any products delivered to the Client, the payment for which has not been received; or
(iv) retain (where applicable) all money paid by the Client on account of products or otherwise; and/or
(v) enforce PE&I’s PPSR interest.
(c) In addition to any action permitted to be taken by PE&I under clause 16(b), on the occurrence of an event of default all invoices will become immediately due and payable.
(a) PE&I's liability (if any) arising from any breach of a warranty or any guarantee or warranty under the Australian Consumer Laws is limited to amount paid to PE&I in respect of that specific project.
(b) Under no circumstances is PE&I liable or responsible in any way to the Client or any other person for any Loss, damages, costs, expenses or other Claims (including consequential damages and Loss of profits or Loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, without limitation.
(c) Any advice, recommendation, information, assistance or service given by PE&I in relation to Services not part of the scope of works for a project, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. PE&I does not accept any liability or responsibility for any Loss suffered as a result of the Client's reliance on such advice, recommendation, information, assistance or service.
(d) To the fullest extent permissible at law, PE&I is not liable for any Claim or damages (including direct, indirect, punitive, incidental, special, consequential damages or, damages for Loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Services) or otherwise arising out of the provision of the Services, whether based on this Agreement, negligence, strict liability or otherwise.
(a) The Client indemnifies and keeps indemnified PE&I, its servants and agents in respect of any Claim made or action commenced against PE&I or, for which PE&I is liable, in connection with any Loss arising from or incidental to the provision of Services, any Order or the subject matter of this Agreement.
(b) Such indemnity includes, but is not limited to, any legal costs incurred by PE&I in relation to meeting any Claim or any party/party legal costs for which PE&I is liable in connection with any such Claim or demand.
(c) This provision remains in force after the termination of this Agreement.
(a) If circumstances beyond PE&I's control prevent or hinder its provision of the Services, PE&I is free from any obligation to provide the Services while those circumstances continue.
(b) PE&I may elect to terminate this Agreement or keep the Agreement on foot until such circumstances have ceased.
In consideration of PE&I agreeing to supply Services to the Client from time to time, the Guarantor guarantees to PE&I the due and punctual payment of all monies payable by the Client to PE&I under this Agreement and any Order and further agrees as follows:
(a) this guarantee is a continuing guarantee to PE&I ;
(b) all dividends compositions and payments received by the Guarantor from the Client or from the Client's estate, whether in bankruptcy or otherwise, will be taken and applied by the Guarantor as payments without there being any deduction in respect of any Claim arising under this guarantee;
(c) in order to give effect to this guarantee, the Guarantor declares that PE&I is at liberty to act as though the Guarantor were the Client for the purposes of collecting payment of monies pursuant to this guarantee;
(d) this guarantee is revocable at any time as to future transactions by sixty (60) days’ notice to PE&I in writing by the Guarantor;
(e) if there is more than one Guarantor guaranteeing the obligations of the Client, the guarantee may be enforced against one or both Guarantors jointly or severally; and
(f) the Guarantor acknowledges having the opportunity to obtain independent legal advice prior to entering into the guarantee.
(a) If a dispute arises between the Client and PE&I, the following procedure applies:
(i) a party may give another party a notice of the dispute identifying and providing details to the dispute (Dispute Notice);
(ii) following being served with a Dispute Notice, the parties must endeavour to resolve the dispute by negotiation;
(iii) unless otherwise agreed by the parties, if the dispute cannot be settled by negotiation between the parties within seven (7) days from issue of a Dispute Notice, the parties expressly agree to refer the dispute to mediation by such mediator as is agreed between the parties or in the absence of agreement, a mediator appointed by the Resolution Institute Ltd, or the successor in title of that organisation.
(b) Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under this Agreement.
(c) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute Notice unless the dispute remains unresolved twenty one (21) days after the issue of the Dispute Notice.
(d) Nothing herein prejudices the right of a party to commence legal proceedings to enforce payment due under this Agreement.
(a) The Client agrees to hold all confidential information in strict confidence and not disclose it to any third parties. The Client agrees to take all reasonable measures to prevent disclosure or misuse of such confidential information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorised to have such information.
(b) Except as required by law, each party must treat as confidential all information relating to the other party, this Agreement and all Orders and must do all things necessary to maintain the confidentiality of such information and incidental for the proper performance of obligations of confidentiality under this Agreement.
(c) PE&I may disclose Personal Information to suppliers, agents and/or contractors who may need the information in order to provide PE&I with supplies or services in order that PE&I may better perform its functions and activities in connection with the provision of the Services.
(d) Where information contains Personal Information each party agrees to:
(i) comply with the provisions of the Privacy Act;
(ii) use or collect the Personal Information for the sole purpose of supplying the Services; and
(iii) protect the Personal Information from misuse and unauthorised access or disclosure.
(e) The parties agree that any breach of the obligations in this clause may cause the other party to incur damage and expense, which shall be recoverable against the breaching party.
(a) Nothing in this Agreement:
(i) constitutes any partnership, joint venture, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement; or
(ii) except as expressly provided, makes a party an agent of another party for any purpose.
(b) A party cannot in any way or for any purpose:
(i) bind another party; or
(ii) contract in the name of another party.
Each party must promptly execute all Documents and do all other things reasonably necessary or desirable to give effect to the arrangements recorded in this Agreement.
The Client authorises PE&I to obtain a credit check regarding the Client. PE&I may give personal and other information about the Client to third parties as may be required in response to credit inquiries and for the purposes of deciding whether to extend credit to the Client.
(a) A notice or other communication including but not limited to any request, demand, consent or approval, connected with this Agreement has no effect unless it is legibly written in English.
(b) The notice may be sent by pre-paid post to the address of the addressee or the addressee’s email address as set out in this Agreement, or an alternate address number or email as notified in writing by a party.
(c) For the purposes of this clause, the email addresses for service of notices on the parties are:
(i) PE&I: info@PE&Iprojects.com.au;
(ii) Client: the address shown in the Order.
This Agreement may only be amended if such amendment is in writing signed by each party.
A clause or part of a clause in this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause continue in force.
(a) This Agreement is governed by the laws of Queensland.
(b) Each party irrevocably submits to the non- exclusive jurisdiction of the courts of Queensland at Brisbane.
Each of the parties to this Agreement warrants to the other that:
(a) they have full power, right and authority and liberty to enter into this Agreement and to perform all of their respective duties and obligations under this Agreement; and
(b) the person executing this Agreement has full power and authority to enter and bind that party to this Agreement.
The parties acknowledge and agree that the statements in the ‘Background’ section of this Agreement are true and correct and form part of the terms of this Agreement.
Subject to the parties executing a later Agreement for Services, this Agreement constitutes the sole and entire Agreement between the parties and a warranty, representation, guarantee or other term or condition of any nature not contained or recorded in this Agreement is of no force or effect.
Additional Charge means:
(a) fees or charges for additional work performed at the Client's request or reasonably required as a result of the Client's request or conduct, calculated in accordance with PE&I's then current prices; and
(b) expenses incurred by PE&I, at the Client's request or reasonably required as a result of the Client's conduct.
Agreement means these terms and conditions and includes the contents of any applicable Quote or Order.
Australian Consumer Law means the Competition and Consumer Act 2010. Business Day means a day that is not a Saturday, Sunday or public holiday in Queensland.
Claim means any Claim, right of action or demand (or similar legal entitlement) including at law, in tort (including negligence), under statute, in equity, under contract or for any other legal remedy.
Client means the person or entity shown on a Quote or Order and includes the Client's agents and permitted assigns.
Documents includes information stored by electronic and other means. Intellectual Property Rights means Intellectual Property Rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.
Insolvent means:
(a) for a person, commits an act of bankruptcy, is declared bankrupt or Insolvent, or is otherwise unable to pay his or her debts as and when they fall due;
(b) for a corporation, is in liquidation, provisional liquidation, under administration or Insolvent (each as defined in the Corporations Act 2001);
(c) for a corporation, has entered a scheme of arrangement (other than for the purpose of restructuring); or
(d) for a corporation, is taken, under the Corporations Act 2001, to have failed to comply with a statutory demand.
Loss includes, but is not limited to, costs (including party to party legal costs and PE&I's legal costs), expenses, lost profits, award of damages, personal injury and property damage.
PE&I means Plastering Estimates & Insights
Order means an Order for Services placed by the Client to purchase Services from PE&I as varied in writing from time to time by the parties.
Purchase Order means the Purchase Order form as nominated by PE&I from time to time for the Client to place Orders with PE&I.
Personal Information has the meaning given to that term in the Privacy Act. Privacy Act means the Privacy Act 1988 (Cth).
Services means any services to the Client supplied by PE&I and includes the Services described in each Order.
PPS Law means:
(a) the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of a PPS Law.
Quote means a written description of the Services to be provided, an estimate of PE&I's charges for the performance of the required work and an estimate of the time frame for the performance of the work. Website means the Website of PE&I, being www.PE&Iprojects.com.au, or such other Website as nominated by PE&I.
In this Agreement, unless the context otherwise requires:
(a) a reference to writing includes email and other communication established through PE&I's Website (if any);
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or paragraph is a reference to a clause or paragraph of this Agreement;
(d) a reference to a party includes that party's executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) all indemnities given under this Agreement are continuing in nature and survive the termination of this Agreement;
(g) headings are for ease of reference only and do not affect the meaning or interpretation of this Agreement; and
(h) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) in all other cases, must be done on the next Business Day.