Terms and Conditions of Trade

1.1 “Contractor” shall mean William Sea Enterprises Pty Ltd ATF White Sands Trust T/AS Smoke Alarmed, its successors and assigns or any person acting on behalf of and with the authority of William Sea Enterprises Pty Ltd ATF White Sands Trust T/AS Smoke Alarmed.

1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Contractor to the Customer.

1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4 “Materials” shall mean all Materials supplied by the Contractor to the Customer (and where the context so permits shall include any supply of Works as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Contractor to the Customer.

1.5 “Works” shall mean all Works supplied by the Contractor to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Materials as defined above).

1.6 “Original Electrical Installation” shall mean any and/or all parts, whether complete or incomplete of the electrical installation installed by the Contractor.

1.7 “Price” shall mean the Price payable for the Materials as agreed between the Contractor and the Customer in accordance with clause 4 of this contract.

2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)

2.1 Nothing in this agreement is intended to have the effect of contracting out of any app licable 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 applicable.

3. Acceptance

3.1 Any instructions received by the Contractor from the Customer for the supply of Materials and/or the Customer’s acceptance of Materials supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.

3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Contractor.

3.4 The Customer shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Contractor as a result of the Customer’s failure to comply with this clause.

3.5 Materials are supplied by the Contractor only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

3.6 The Customer accepts and acknowledges that in the event that the Contractor is denied access to the worksite on the agreed start date, then the Contractor reserves the right to charge the Customer for all costs incurred by the Contractor (including, but not limited to, any loss of profits, employee wages, mileage).

4. Price and Payment

4.1 At the Contractor’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by the Contractor to the Customer in respect of Materials supplied; or

(b) the Contractor’s quoted Price (subject to clause 4.2) which shall be binding upon the Contractor provided that the Customer shall accept the Contractor’s quotation in writing within fourteen (14) days.

4.2 The Contractor reserves the right to change the Price in the event of a variation to the Contractor’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of Works required due to hidden or unidentifiable difficulties beyond the reasonable control of the Contractor or as a result of price increases in materials and labour costs) will be detailed in writing and charged for on the basis of the Contractor’s quotation and will be shown as variations on the

invoice. Payment for all variations must be made in full at their time of completion.

4.3 At the Contractor’s sole discretion a deposit may be required.

4.4 At the Contractor’s sole discretion:

(a) a non-refundable deposit may be required; or

(b) payment shall be due on delivery of the Materials; or

(c) payment shall be due before delivery of the Materials; or

(d) detailed progress payment claims may be submitted by the Contractor in accordance with the Contractor’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.

4.5 Any discounts or cash back offers for “on time guarantees” applicable to the Price shall become null and void if:

(a) payment is not made by the due date stated on the invoice and/or statement; or

(b) if the Contractor arrives within the window of time agreed between the Contractor and the Customer or the Contractor advises of late arrival but still within the timeslot originally agreed.

4.6 Time for payment for the Materials shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.

4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to five percent (5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and the Contractor.

4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

5. Delivery of Materials

5.1 At the Contractor’s sole discretion delivery of the Materials shall take place when:

(a) the Customer takes possession of the Materials at the Contractor’s address; or

(b) the Customer takes possession of the Materials at the Customer’s nominated address (in the event that the Materials are delivered by the Contractor or the Contractor’s nominated carrier); or

(c) the Customer’s nominated carrier takes possession of the Materials in which event the carrier shall be deemed to be the Customer’s agent.

5.2 At the Contractor’s sole discretion the costs of delivery are:

(a) included in the Price; or

(b) in addition to the Price; or

(c) for the Customer’s account.

5.3 The Customer shall make all arrangements necessary to take delivery of the Materials whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Materials as arranged then the Contractor shall be entitled to charge a reasonable fee for redelivery.

5.4 Delivery of the Materials to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

5.5 The Contractor may deliver the Materials by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.6 The Customer shall take delivery of the Materials tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:

(a) such discrepancy in quantity shall not exceed five percent (5%); and

(b) the Price shall be adjusted pro rata to the discrepancy.

5.7 The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.

5.8 The Contractor shall not be liable for any loss or damage whatsoever due to failure by the Contractor to deliver the Materials (or any of them) promptly or at all, where due to circumstances beyond the control of the Contractor.

6. Risk

6.1 If the Contractor retains ownership of the Materials nonetheless, all risk for the Materials passes to the Customer on delivery.

6.2 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Contractor is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by the Contractor is sufficient evidence of the Contractor’s rights to receive the insurance proceeds without the need for any person dealing with the Contractor to make further

enquiries.

6.3 Where the Customer expressly requests the Contractor to leave Materials outside the Contractor’s premises for collection or to deliver the Materials to an unattended location then such Materials shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all.

6.4 The Contractor shall not accept any responsibility for any damage caused by, or faults arising from, the Original Electrical Installation where the Original Electrical Installation has been interfered with by a third party, whether the third party is a contractor, employed by the Customer, or is the Customer. Interference to the Original Electrical Installation includes any third party Works (including but not limited to any cabinetry,

painting, tiling, gib board plastering). The Customer accepts that the layout of the electrical installation will be at the sole discretion of the Contractor Where interference to the Original Electrical Installation had taken place without the express permission of the Contractor then all rectification Works required of the Contractor will be charged as a variation as per clause 4.2. In the event the Customer believes that they have any claim

to retrieve costs relating to any rectification Works required from the aforesaid interference then the Customer must address their claim against the relevant third party.

6.5 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Customer then the Customer agrees to notify the Contractor immediately upon any proposed changes. The Customer agrees to indemnify the Contractor against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 4.2.

6.6 In the event the Customer requests another electrical contractor (third party) to undertake Works, and those Works interfere with the Original Electrical Installation then:

(a) it shall be the third party’s responsibility to undertake all compliance, fit out and testing requirements as detailed in all relevant Electrical Wiring Rules documentation in relation to the Works. The Contractor shall not be responsible for providing any assistance with other electrical works undertaken by the third party. The Contractor reserves the right to halt any other electrical work that in the Contractor’s opinion contravenes Health, Safety and Wiring Rules issues; and

(b) at the Contractor’s sole discretion, the Contractor reserves the right to cancel the project contract, if the third party or the Customer persistently interferes with, or makes alterations to the Original Electrical Installation, without notification, consultation, supervision or the consent of the Contractor the Contractor also reserves the right to call a site meeting with all parties associated with the Original Electrical Installation at the job site to discuss these and similar issues; and

(c) at the Contractor’s sole discretion, the Contractor reserves the right to alter and/or remove at the Customer’s cost all other electrical works that interfere with the Original Electrical Installation; and

(d) the Customer acknowledges and agrees that the Contractor reserves the right of final decision regarding all aspects of the Original Electrical Installation in its entirety, as defined in clause 1.6.

6.7 The Customer acknowledges that in the event asbestos or any other toxic substances are discovered at the Worksite that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify the Contractor against any costs incurred by the Contractor as a consequence of such discovery. Under no circumstances will the Contractor handle removal of asbestos product.

7. Access/Damage

7.1 The Contractor shall not be liable for any loss or damage caused in accessing the work site beyond reasonable control of the Contractor (including, ceiling tiles and panels, face brickwork and rendered masonry Works) which the Contractor may have to break into or disturb in performance of the works), unless due to the negligence of the Contractor.

8. Underground Locations

8.1 Prior to the Contractor commencing any work the Customer must advise the Contractor of the precise location of all underground Works on the site and clearly mark the same. The underground mains & Works the Customer must identify include, but are not limited to, electrical works, gas works, sewer works, pumping works, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other works that may be on site.



8.2 Whilst the Contractor will take all care to avoid damage to any underground works the

Customer agrees to indemnify the Contractor in respect of all and any liability claims,

loss, damage, costs and fines as a result of damage to works not precisely located and

notified as per clause 8.1.

9. Clean Up on Completion Guarantee

9.1 It is acknowledged between the Contractor and the Customer that the Contractor shall carry out a clean up of the property after completion of the Works by removing all rubbish caused by the Contractor during the performance of the Works.

10. Materials

10.1 Unless otherwise stated elsewhere in this contract;

(a) only suitable new Materials will be used;

(b) demolished Materials remain the Customer’s property; and

(c) Materials which the Contractor brings to the site which are surplus remain the property of the Contractor

10.2 In the event that the Customer supplies Materials for use during the Works the Customer accepts and acknowledges that it shall be at the Contractor’s sole discretion as whether such Materials are suitable for use.

11. Title

11.1 The Contractor and the Customer agree that ownership of the Materials shall not pass 

until:

(a) the Customer has paid the Contractor all amounts owing for the particular Materials; and

(b) the Customer has met all other obligations due by the Customer to the Contractor in respect of all contracts between the Contractor and the Customer.

11.2 Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Contractor’s ownership or rights in respect of the Materials shall continue.

11.3 It is further agreed that:

(a) where practicable the Materials shall be kept separate and identifiable until the Contractor shall have received payment and all other obligations of the Customer are met; and

(b) until such time as ownership of the Materials shall pass from the Contractor to the Customer the Contractor may give notice in writing to the Customer to return the Materials or any of them to the Contractor. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Materials shall cease; and

(c) the Contractor shall have the right of stopping the Materials in transit whether or not delivery has been made; and

(d) if the Customer fails to return the Materials to the Contractor then the Contractor or the Contractor’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Materials are situated and take possession of the Materials; and

(e) the Customer is only a bailee of the Materials and until such time as the Contractor has received payment in full for the Materials then the Customer shall hold any proceeds from the sale or disposal of the Materials, up to and including the amount the Customer owes to the Contractor for the Materials, on trust for the Contractor; and

(f) the Customer shall not deal with the money of the Contractor in any way which may be adverse to the Contractor; and

(g) the Customer shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they remain the property of the Contractor; and

(h) the Contractor can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials may not have passed to the Customer; and

(i) until such time that ownership in the Materials passes to the Customer, if the Materials are converted into other products, the parties agree that the Contractor will be the owner of the end products

12. Defects

12.1 The Customer shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Contractor an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which the Contractor has agreed in writing that the Customer is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Materials or repairing the Materials except where the Customer has acquired Materials as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Materials, or repair of the Materials, or replacement of the Materials.



12.2 Materials will not be accepted for return other than in accordance with 12.1 above.

13. Warranty

13.1 Subject to the conditions of warranty set out in clause 13.2, the Contractor warrants that if any defect in any workmanship of the Contractor becomes apparent within 5 years of installation, and is reported to the Contractor, then the Contractor will either (at the Contractor’s sole discretion) replace or remedy the workmanship.



13.2 The conditions applicable to the warranty given by clause 13.1 are:

(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

• (i) failure on the part of the Customer to properly maintain any Materials; or
• (ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Contractor; or
• (iii) any use of any Materials otherwise than for any application specified on a quote or order form; or
• (iv) the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
• (v) fair wear and tear, any accident or act of God.

(b) the warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Contractor’s consent.

(c) in respect of all claims the Contractor 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.

13.3 For Materials not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Contractor 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 Materials.

14. Default and Consequences of Default

14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

14.2 In the event that the Customer’s payment is dishonoured for any reason the Customer

shall be liable for any dishonour fees incurred by the Contractor.

14.3 If the Customer defaults in payment of any invoice when due, the Customer shall

indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including legal costs on a solicitor and own client basis

and the Contractor’s collection agency costs.

14.4 Without prejudice to any other remedies the Contractor may have, if at any time theCustomer is in breach of any obligation (including those relating to payment) theContractor may suspend or terminate the supply of Materials to the Customer and any ofits other obligations under the terms and conditions. The Contractor will not be liable tothe Customer for any loss or damage the Customer suffers because the Contractor has exercised its rights under this clause.

14.5 If any account remains overdue after thirty (30) days then an amount of the greater offifty dollars ($50.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred and fifty dollars ($250.00)) shall be levied for administration fees which sum shall become immediately due and payable.

14.6 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Customer will be unable to meet its payments as they fall due; or

(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

15. Security and Charge

15.1 Despite anything to the contrary contained herein or any other rights which the Contractor may have howsoever:

(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Contractor or the Contractor’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Contractor (or the Contractor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.

(b) should the Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Contractor from and against all the Contractor’s costs and disbursements, including legal costs on a solicitor and own client basis.

(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Contractor or the Contractor’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of the clause 15.1.

20. Building and Construction Industry Payments Act 2004

20.1 At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Payments Act 2004 may apply.

20.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.

21. General

21.1 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.

21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.

21.3 The Contractor shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Contractor of these terms and conditions.

21.4 In the event of any breach of this contract by the Contractor the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Materials.

21.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.

21.6 The Contractor may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

21.7 The Customer agrees that the Contractor may review these terms and conditions at any time. If, following 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 the Contractor notifies the Customer of such change.

21.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

21.9 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.