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Terms and Conditions

Appendix C – Commercial Credit Terms of Trade: Terms & Conditions

A reference to “The Supplier” means Edwards & Vickerman Consulting Engineers Pty Ltd (ACN: 150 299 586) (hereinafter referred to as the Supplier).

The Customer acknowledges that these are the Agreed Trading Terms and that an application is required to the Supplier, prior to the granting of a Commercial Credit Account. Such Account is only effective on receipt of a written approval from the Supplier.

Please read the undermentioned terms carefully. If you do not understand these terms of trade, you should seek legal advice.

  1. These Agreed Trading Terms are in addition to the Building and Constructions Industry Security of Payments Act 1999 New South Wales.
  2. The basis of our Appointment will be as per our “Fee Proposal” (Contract of works) whereby our liability will be limited to the amount of the fee of the services to be conducted but excludes direct/indirect and/or consequential damages.
  3. Our Professional Indemnity Insurance (PI) shall not be less than $1,000.000.
  4. Duration of Liability: The Supplier shall be deemed to have been discharged from all liability in respect of the services provided, whether under the law of contract, tort or otherwise, one (1) year from the anniversary of the completion of Services, and if that is deemed unreasonable, two (2) years from the date of the anniversary of the completion of the Services, and if that time is deemed unreasonable, three (3) years from the date of the anniversary of the completion of the Services. The Customer acknowledges this express time limit, and the Customer expressly acknowledges that they will not be entitled to commence any action or claim whatsoever after this time.
  5. The agreed trading terms for payment of all our Invoices, is fourteen (14) days from the date of our Invoice.
  6. All plans, documentation and reports remain the sole property of the Supplier until the issued Invoice(s) has been paid in full. Should payment for our Invoice(s) not be paid within the agreed trading terms, then the Supplier reserves the right to place the account on hold, and not provide further service, designs and or documentation, until the account is returned to the agreed trading terms, and the Supplier agrees to recommence the supply of services, designs and or documentation.
  7. The Customer hereby agrees & acknowledges that at the absolute discretion of the Supplier, an account keeping fee of 3% per month will be levied on any or all amounts in default of the agreed trading terms.
  8. The Customer further agrees to indemnify the Supplier for any legal costs incurred by the Supplier (including but not limited to charges & commission charged by mercantile agents) in respect of these agreed trading terms, agreements, personal guarantees, securities given or other documentation required whilst credit is being offered in consequence of this application, and the Customer further agrees to indemnify the Supplier in the event that the Customer’s account is in default of the agreed trading terms to indemnify the Supplier against its collection fees & legal costs.
  9. These Agreed Trading Terms apply to all transactions from which the Customer is supplied services by the Supplier on credit. If any future contract between the Supplier & the Customer is inconsistent with these Agreed Trading Terms, then these Agreed Trading Terms will apply unless the subsequent contract refers to and specifically alters these Agreed Trading Terms in writing.
  10. Should there be any variation to any of the information supplied by the Customer in this application or in the structure of the Customer’s business (such as a conversion to or from a company or trust or the appointment of new directors), the Supplier shall be notified in writing. Until a new application form is signed and approved in writing by the Supplier, then the original application and those person(s) who signed as guarantor(s) shall remain liable to the Supplier as though all goods and services were supplied to the original Customer.
  11. The Supplier reserves the right to amend these agreed trading terms, provided such amendments are conveyed to the Customer in writing. The Customer further acknowledges that such writing will be by ordinary email/mail to the address set out in this Commercial Credit Application, unless the Customer advises in writing to the Supplier a new address, and this new address is acknowledged by return in writing by the Supplier.
  12. The Supplier shall be entitled at any time to assign its rights under this Commercial Credit Application to its successors, nominated transferees or assigns, (including but not limited to, where applicable personal guarantees), and that these Agreed Trading Terms shall not be in any way affected or discharged pursuant to such assignment.
  13. Caveatable Interest Clause: In the event of Default of the agreed trading terms by the Customer, then the Customer by its Director(s)/Proprietor(s)/Partners/Individual(s), nominated on the “Client Acceptance / Authority to Proceed” form included in the Fee Proposal, charge all their Right, Title of Interest (if any) to any or all property(ies) now owned or partly owned or may in the future become owned, solely or jointly by the said Customer/Director(s)/Proprietor(s)/ Partners/Individual(s) on Page 1 of this application in favour of the Supplier, to better secure the monies outstanding, with the due and punctual observance and performance of all of the obligations of the Customer hereunder. Such Customer acknowledges that the Supplier may, at its discretion, register a caveat on such property in respect of the interest conferred on it under this clause. In the event that the Supplier is required to exercise its right under this clause, against the Customer, then the Customer grants to the Supplier the right to appoint a Receiver and sell the property(ies).
  14. Retention Of Title: Until ALL INVOICES are paid in full, and ALL MONIES receipted and cleared, ownership of all designs, documents produced, and drawings remain the sole property of the Supplier. Text documents may be issued for information in Word for Windows format. Issue of documents in electronic form is at the recipient’s risk and any reformatting or editing requires is their responsibility unless special arrangements are made. The Customer shall store all designs, documents produced and drawings separately from its own until ownership has manifested in the Customer. Should the designs, documents produced and or drawings be provided to a third party before payment, or in the event of the Appointment of an Administrator, Controller, Managing Controller, Receiver or Receiver Manager, or entry into an Informal/Formal Deed of Arrangement under the Bankruptcy Act of 1966 by the Customer, then the Customer hereby assigns to the Supplier its right of recovery of payment from the third party. Any monies resulting from the transfer of the documents and or drawings to a third party are to be specifically earmarked and placed in a separate account on trust for the Supplier, until payment in full is made to the Supplier for the cost of the designs, documents produced and or drawings only, to guarantee clear passage of ownership to the third-party innocent transferee.In the event the Customer is in default of the agreed trading terms, then the Customer without reservation grants right of entry waiver to any or all properties under the Customers control, where the designs, documents produced and or drawings are reasonably expected to be stored. The Customer indemnifies and save harmless the Supplier, its servants or agents in relation to the retaking of possession of the said designs, documents produced and or drawings. Further in the event the Supplier exercises its right of retaking possession of the said documents and or drawings, the Customer grants power of sale to the Supplier to resell the said designs, documents produced and or drawings and the Customer acknowledges that any shortfall owing after the said designs, documents produced and or drawings are resold will be the responsibility of the Customer. Notwithstanding any other provision of this Agreement, it is expressly agreed by the Customer that the Supplier may sue for the price of all designs, documents produced, and drawings delivered to the Customer or for damages in Breach of Contract, notwithstanding that ownership in those goods has not been passed to the Customer.
  15. Statements as to suitability, quality, fitness for purpose, capacity or otherwise contained in any design, documents produced and drawings, catalogue or specification or other documents issued by the Supplier shall not be regarded as forming part of the agreed trading terms resulting from acceptance of any order(s) unless specifically stated in writing by the Supplier. The Customer warrants that prior to the creation of these agreed trading terms the Customer warrants that it was satisfied by means other than information given by, or received from the Supplier, as to the quality of the designs, fitness for purpose, documents produced and or drawings produced by the Supplier.
  16. Service Of Documents: The Customers acknowledges that service of all documents will be by email and or prepaid postal addressed envelope to the address nominated on this Commercial Credit Application form, unless a new address is provided by the Customer, and such new address is acknowledged by return in writing from the Supplier. Note the Customer expressly acknowledges that service is deemed to be affected after the expiration of 7 days from date of posting of the documents.
  17. Access To Site: The Customer at all times is responsible for ensuring suitable access to the site by the Consultant. The Customer further indemnifies and saves harmless the Supplier, and or its servants or agents against any loss or damage, in the event the Customer fails to provide suitable access to site.
  18. NOTE: Pricing may vary from time to time subject to material increases outside the control of the Supplier.
  19. On acceptance of the quote, the agreed fees for the designs, documents produced and or drawings will remain current for six (6) months. The Supplier reserves the right to revise, requote for any project outside of the six (6) months.
  20. Copyright & IP Rights: The Supplier retains the Copyright and IP Rights in the design(s), documents produced and drawings. The Supplier grants to the Customer irrevocably, royalty-free license to use, adapt, reproduce, amend publish and sub-license the design(s), documents produced and or drawings for use by the Customer. Such License is subject to the Suppliers Invoice(s) being paid in full within the agreed trading terms of 14 days.
  21. Financial Information: The Customer agrees to provide financial information as is reasonably required by the Supplier from time to time, for the assessment of current and future credit limits only. The Supplier and the Customer further agree that such information shall be treated as strictly confidential and will not be disclosed to any third party(ies) without the express written permission of the Customer.
  22. Credit Claims: It is the responsibility of the Customer to carefully inspect the designs, documents produced and or drawings immediately they are provided by the Supplier. Credit Claims will only be recognised if made in the first instance by phone within 72 HOURS of receipt, and in writing within 7 days of receipt. Claims outside this period will be at the absolute discretion of the Supplier, and its decision final and binding on the Customer.
  23. Return Of, Cancellation of Designs, Documents Produced and Or Drawings. In the event the Customer elects to cancel and or return any designs, documents produced and or drawings to the Supplier, the Supplier at its absolute discretion reserves the right to charge for the cost of the works to date. Further no cancellation, return of designs, documents produced and or drawings will be accepted, without the prior approval of the Supplier in writing.
  24. Special Orders/Variations: Special orders/Variations will only commence upon receipt of a written purchase order from the Customer.
    NOTE: No cancellation of special orders/variations will be accepted once the Special Order/ Variation has commenced.
  25. Warranties: All services provided carry only such warranty of the Supplier therein, or as implied by law as covered under Consumer and Competition Act 2010 (Cth).
    NOTE: No warranty work will be undertaken and or completed whilst ever the Customer’s account is in default of the agreed trading terms.
  26. Damages: The Supplier shall not be liable for any amount greater than the limitation as per Clause 2 of the Agreed Trading Terms. Without Limiting the meaning of this clause, the Supplier shall not be liable for any claims, loss, expense whatsoever, howsoever arising, or in any event in any way whatsoever for any contingent, consequential direct/indirect special, or punitive damages arising in relation thereto, and the Customer acknowledges this express limit or liability and agrees to limit any claim accordingly. Further the Supplier shall not be responsible directly or indirectly for any consequential loss or damage, by the Customer, or to any third party, or from any failure of the designs, documents produced and or drawings produced whether defective or not.
  27. Set Off Clause. At the absolute discretion of the Supplier, in the event that there are any monies owed to the Customer by the Supplier, the Supplier reserves the right to offset the amount owed by the Supplier to the Customer against any monies owing by the Customer to the Supplier.
  28. GST will be charged where appropriate, unless a signed exemption form is received by the Supplier in the approved prescribed manner as set down by the Australian Tax Office.
  29. Environmental Requirements: The Customer confirms and acknowledges it has made all inquiries in relation to all responsibilities conferred upon the Customer, by all relevant legislation, relating to use of the designs, documents produced and or drawing supplied by the Supplier.
  30. Jurisdiction: The Customer acknowledges that this contract shall be governed by the Laws of the State of the nominated Supplier, and the Customer hereby agrees to submit to the nonexclusive jurisdiction of the Courts of that State, in that State’s capital city.

Appendix D – Personal Guarantee, Indemnity & Caveatable Interest

A reference to “The Supplier” means Edwards & Vickerman Consulting Engineers Pty Ltd (ACN: 150 299 586) (hereinafter referred to as the Supplier).

In consideration of the Supplier supplying goods or services or both to the Customer referred to at the bottom of this form, the Guarantor(s) and Indemnifier(s) set out below hereby Guarantee and Indemnify to the Supplier due and punctual payment by the Customer of all monies which are now payable or may in the future become payable by the Customer to the Supplier for goods & services or both supplied from time to time by the Supplier to the Customer, and all damages payable by the Customer to the Supplier, (“the secured moneys”) AND it is hereby further agreed as follows:

  1. The secured moneys shall include collection fees and legal costs incurred by the Supplier in connection with the default by the Customer.
  2. The Supplier is at liberty without notice to us at any time and without in any way discharging us from any liability hereunder to grant time, waiver, release or other indulgence to the Customer and to accept from the Customer payment in cash, cheque, EFT or otherwise.
  3. Nothing in this Guarantee and Indemnity is binding or conditional upon the Supplier continuing to supply goods or services or both to the Customer.
  4. That the Supplier may exercise its rights under this Guarantee and Indemnity at any time and the Guarantor(s) and Indemnifier(s) shall pay the amount of any indebtedness of the Customer account to the date of any demand, forthwith upon receipt of a written demand, or its delivery to the last known address of each or all Guarantor(s) and Indemnifier(s). It shall not be a condition precedent to the issue of any such demand that the Supplier shall have exercised or exhausted its legal rights against the Customer.
  5. The Guarantor(s) and Indemnifier(s) hereby guarantee and indemnify the Supplier against any losses or expenses whatsoever directly or indirectly arising from or by virtue of any default whatsoever on the part of the Customer with respect to the secured moneys.
  6. This Guarantee and Indemnity shall not be considered wholly or partially discharged by the payment at any time hereafter of any of the secured moneys or by any settlement of account and shall apply to the present and any future balance of the secured moneys.
  7. This Guarantee and Indemnity shall be a continuing Guarantee and Indemnity to the Supplier for all debts whatsoever and wheresoever contracted with the Customer in respect of the goods or services or both supplied or to be supplied to the Customer.
  8. The Guarantor(s) and Indemnifier(s) may revoke this Guarantee and Indemnity at any time. Such revocation shall be effective only upon its delivery to the Secretary of the Supplier at its registered address and shall become effective at the time of written acknowledgment by the Secretary of it’s receipt. Such notice of revocation shall only operate to discharge the Guarantor(s) and Indemnifier(s) from liability as to future dealing by the Customer with the Supplier after the said date of written acknowledgment.
  9. That the Supplier shall be entitled at any time to assign its rights under this Guarantee and Indemnity to its successors, nominated transferees or assigns, (including but not limited to the principal contract), & further vary the Terms of Trade originally attached to the Commercial Credit Application of the Customer nominated below, without notice to the Guarantor(s) and Indemnifier(s), & that this Guarantee and Indemnity shall not be in any way affected or discharged pursuant to such assignment or variation.
  10. That the terms of this Guarantee and Indemnity are binding (if more than one) jointly on us & severally on each of us & shall not be affected not withstanding that one or more of the intended co-guarantor(s)/indemnifier(s) have not executed this Guarantee and Indemnity or that the Guarantee and Indemnity has been held to be ineffective or unenforceable against one or more of the Guarantor(s) and Indemnifier(s)
  11. That in the event that the Customer is a company and the Guarantor(s) and Indemnifier(s) are not directors then the Guarantor(s) and Indemnifier(s) certify that they have obtained independent commercial financial & legal advice prior to signing this personal Guarantee & Indemnity.
  12. CAVEATABLE INTEREST CLAUSE. In the event of default by the Customer, and the Supplier exercises its rights under this Guarantee and Indemnity, then the Guarantor(s) and Indemnifier(s) hereby charge all their property(ies) now owned or partly owned, or may in the future become owned, solely or jointly by the Guarantor(s) and Indemnifier(s) in favour of the Supplier to better secure the monies outstanding, with the due & punctual observances and performances of all of the obligations of the Guarantor(s) and Indemnifier(s) hereunder. The Guarantor(s) and Indemnifier(s) acknowledges that the Supplier will at its discretion register a Caveat on such property in respect of the interest conferred on it under this clause. The Guarantor(s) and Indemnifier(s) further grant to the Supplier the right to appoint a Receiver to sell the property(ies).
  13. The Guarantor(s) and Indemnifier(s) agree that the Supplier will seek from a Credit Reporting Agency, a Credit Report containing personal information about me/us to assess whether to accept me/us as a Guarantor(s) and Indemnifier(s) for Commercial Credit applied for, or provided to, the Customer.
  14. I/We agree that if the Supplier approves the Customer’s application for Commercial Credit, this agreement to seek credit reports from time to time, remains in force until the Commercial Credit facility covered by the Customer’s application ceases.