STANDARD TERMS OF CONTRACT
CROSSWELD FABRICATIONS PTY LTD ACN 131 713 132 AS TRUSTEE FOR THE CROSS FAMILY TRUST BSA Licence Number 1144747 (CROSSWELD)

Crossweld and the Customer hereby agree to be bound by the following:

  1. This document and the terms of any Accepted Quotation (the “Contract”) constitute: (a) the contract between Crossweld and (b) the entire agreement between Crossweld and the Customer.  All previous negotiations, warranties, undertakings and understandings are hereby superseded.  In the event of any inconsistency the terms of a Quotation prevail over this document to the extent of the inconsistency.  This Contract prevails over any other terms stipulated or referred to by the Customer or of any order placed by the Customer. 

  2. The Customer warrants: (a) that it has had the opportunity to read this document and to seek its own independent advice (including legal advice) about this Contract; and (b) that it enters this Contract with full understanding of its terms and after undertaking such negotiations about this Contract as it desired. 

  3. A Quotation does not give rise to a binding contract between the Customer and Crossweld.  Unless otherwise stated in writing or withdrawn, a Quotation is valid for a period of 30 days from the date of the Quotation (the Validity Period).  Crossweld is only bound to perform Quotations if it receives unconditional written acceptance of the Quotation from the Customer within the Validity Period, however Crossweld may (in its discretion) permit other forms of acceptance or acceptance after the Validity Period.  Quotations are given based on information provided by the Customer and the Customer is solely responsible for the accuracy of any information so provided.  Crossweld may withdraw and/or replace a Quotation in its discretion, including if after the date of the Quotation the Customer notifies Crossweld of any change to the information provided or to the goods or services required by the Customer.  Clerical errors in a Quotation (or otherwise) are subject to correction and do not bind Crossweld.

  4. Crossweld agrees to perform the Works and (if specified in the Accepted Quotation) install them at the Site, for the Consideration.  The Works will be carried out in an appropriate and skilful way using all reasonable care and skill, using only new materials (unless agreed otherwise) and in accordance with all applicable laws and legal requirements.

  5. Unless Crossweld specifies otherwise in writing, all figures and amounts are exclusive of GST and any other taxes and duties (except income tax) and the consideration for a taxable supply must be increased by the amount of the GST or such other tax and duty.

  6. The Customer must pay the Consideration at the stages specified in the Accepted Quotation and if not so specified upon Completion of the Works.  All payments must be made within 14 days of the date of Crossweld’s tax invoice for the Works or part thereof.  Payments must be made in clear funds to Crossweld (or as Crossweld directs) by the method that Crossweld reasonably requires and without any set of or deduction on any account whatsoever. Crossweld may require the Customer to pay a deposit (whether specified in a Quotation or not) before Crossweld is bound to perform a Quotation or accept an order.  The Customer is not entitled to retain any amount from any payments nor to require provision of any securities for the performance of the Works

  7. The Customer agrees to pay any additional amount invoiced for any variations to the Works, being the amount agreed for the variation or in the absence of agreement the reasonable value of the variation (including a reasonable amount for profit, overheads and administrative costs).  Crossweld is not obliged to perform any variation requested by the Customer unless the Customer agrees in writing to the price for the variation.

  8. Crossweld will complete the Works (subject to this Contract) in accordance with the time specified in the Accepted Quotation and if not specified in the Accepted Quotation within a reasonable time of the later of date of acceptance of the Accepted Quotation and payment of any deposit required by Crossweld.  No liquidated damages or other damages are payable for late completion.

  9. Goods are at the Customer's risk from the time the goods are collected by or on behalf of the Customer, or from the time they are delivered to the Customer (if the goods are to be delivered to the Customer).  If the Works includes installation then risk in goods passes to the Customer upon installation.

  10. Even though the Customer has possession or control over goods, title in those goods does not pass to the Customer but remains with Crossweld until payment for those goods has been received in full.  If the Customer defaults in any of these Terms then Crossweld has the right (without giving notice) to retake possession of those goods and the Customer hereby authorises Crossweld or its representatives to enter into any premises upon which those goods are housed or stored for the purpose of retaking possession and Crossweld will not be liable for any costs, loss, damages incurred or lost by the Customer as a result directly or indirectly of Crossweld retaking possession of those goods. This clause constitutes the grant of a security interest by the Customer in favour of Crossweld in relation to all goods supplied to the Customer by Crossweld and the sale proceeds thereof and:

    1. Crossweld may at any time register in respect of all or any of those goods its security interest on the Personal Property Securities Register (PPSR); 

    2. The Customer must promptly do all things (including signing documents) as may be required to ensure registration of the security interest on the PPSR and must not object to the registration of the security interest on the PPSR;

    3. For the purposes of registration, the parties agree that the security interest constitutes a financial statement where the duration is seven years or less;

    4. The Customer waives the right to receive notice of a verification statement in relation to any registration of security interest on the PPSR;

    5. If chapter 4 of the Personal Property Securities Act 2009 (Cth) (PPSA) would otherwise apply to the enforcement of the security interest, the Customer agrees the following provisions of the PPSA will not apply to the enforcement of this Contract: Section 95, to the extent that it requires Crossweld to give notice to the Customer, Section 96, Section 121(4), Section 125, Section 130, to the extent that it requires Crossweld to give a notice to the Customer, Section 132(3)(d), Section 132(4), Section 135, Section 142 and Section 143.

  11. The Customer will be in default of this Contract if: (a) it fails to make payments when due; (b) it otherwise fails to comply with this Contract, (c) (in Crossweld’s reasonable opinon) there is an adverse change in the Customer’s financial position, (d) the Customer becomes bankrupt or commits an act of bankruptcy or enters into a scheme or arrangement or composition with its creditors or, being a corporation if an administrator, liquidator, receiver or receiver and manager is appointed to it or (e) if it becomes incapable of managing its own affairs.  Upon default, by the Customer, Crossweld may in its discretion do any one or more of the following:

    1. terminate this Contract;

    2. declare that all amounts owing to Crossweld by the Customer are immediately due and payable, whereupon such amount must be paid by the Customer on demand;

    3. if the default includes failure to pay money owed to Crossweld on the due date, Crossweld may charge interest on the amount of the invoice from the due date for payment until the date payment is made at the Interest Rate calculated compounded annually;

    4. withhold or suspend the Works including delivery of any further goods or provision of further services;

    5. deliver an invoice for Works completed to the date of termination and/or orders placed on behalf of the Customer (being such reasonable amount as Crossweld in its discretion determines represents the value of those Works or those orders plus an additional 30% of those amounts being genuine pre-estimate of Crossweld’s lost profit and overheads and administrative costs).

  12. The Customer must pay Crossweld's legal costs (on an indemnity basis) of enforcing any of Crossweld's rights under this Contract. The Customer must also pay fees and expenses payable to any mercantile or commercial agent including any debt collection agency engaged by Crossweld to obtain or attempt to obtain payment of amounts due by the Customer.  The Customer acknowledges that those expenses may be calculated on a commission basis.  Amounts received by Crossweld may be applied first against legal costs and agent costs, then to interest and then to payment of overdue invoices.  The Customer agrees to indemnify and keep indemnified Crossweld against any loss, claim or expense (including legal costs on indemnity basis) relating to any breach of this Contract by the Customer.

  13. Unless Crossweld has agreed to deliver and/or install the Works, Crossweld will notify the Customer when the Works are ready for collection.  The Customer must pay Crossweld's holding costs if the goods are not collected within seven days of such notification. 

  14. If Crossweld agrees to deliver the Works to the Customer (including for the purpose of installation), Crossweld will provide an anticipated delivery date however makes no warranty as to time or delivery day and is not responsible for delays in delivery nor for failure to deliver due to causes beyond Crossweld's control.  Crossweld may make part deliveries of an order.  Except where the Works include installation, the Customer must be present at the time of delivery (failing which the goods may be left at the Site, without responsibility for any claims, damages, expenses or costs resulting or arising therefrom).

  15. The Customer is deemed to have inspected and accepted the Works as being in satisfactory condition and in conformity with this Contract upon collection of the Works, or in the case of delivery or installation, upon the earlier of signing of acceptance by the Customer or the expiration of 24 hours from the time of delivery or installation as the case may be, unless during that period Crossweld receives written notice from the Customer of any damage or claim.

  16. If the Works include the installation then the following additional provisions apply:

    1. a reasonable time before the anticipated installation date the Customer must notify Crossweld in writing if the Customer requires completion of an induction program by Crossweld and provide details of the time and place for the conduct of the induction program.  If the induction program exceeds one (1) hour then Crossweld reserves the right to charge the Customer an additional fee at Crossweld’s then hourly rates for all persons attending the induction on behalf of Crossweld;

    2. the Customer must allow or provide access to the Site at all reasonable times for the purposes of installing the Works.  Except to the extent of any negligence by Crossweld’s employee’s, agents and contractors, the Customer accepts full responsibility for Crossweld’s employees, agents and contractors while at the Site and indemnifies and agrees to keep indemnified Crossweld against any claims, loss, damage, costs, expenses (including legal expenses on a full indemnification basis) arising directly or indirectly out of Crossweld’s employees, agents or contractors attending at the Site for those purposes.

  17. If the Australian Customer Law applies to this Contract then the Works come with guarantees that cannot be excluded under the Australian Customer Law. If it is lawful to do so Crossweld limits its liability for failure to comply with a Customer guarantee to one or more of the following:

    1. in the case of goods:

    2. the replacement of the goods or the supply of equivalent goods;

    3. the repair of the goods;

    4. the payment of the cost of replacing the goods or of acquiring equivalent goods; or

    5. the payment of the cost of having the goods repaired;

    6. in the case of services:           

    7. the supplying of the services again; or

    8. the payment of the cost of having the services supplied again.

  18. If the Australian Customer Law does not apply to this Contract then except for any terms, conditions or warranties implied by law which are not capable of exclusion, or as otherwise expressly provided in this Contract, all conditions, warranties, terms, undertakings, duties and obligations expressed or implied by law in any way relating to goods or services (including as to merchantability, fitness or otherwise) are hereby excluded and Crossweld shall not be liable in contract, tort, negligence, breach of statutory duty or otherwise in respect of any loss or damage claimed for demands of any nature arising directly or indirectly out of provision of goods or the supply or services by Crossweld.

  19. This Contract is governed by and construed under the laws of Queensland, Australia.  Any legal action in relation to these Terms must be commenced in Cairns, Queensland, Australia.

  20. If any term or condition of this Contract is or becomes illegal or unenforceable it will be severed and none of the remaining terms or conditions will be affected.

  21. If Crossweld is prevented from or restricted in carrying out its obligations due to any matter beyond Crossweld’s reasonable control, then Crossweld is excused from carrying out its obligations to the extent of the cause of the non-performance and the time for completion of the Works is extended by the time that Crossweld is so prevented or restricted.

  22. Any failure by Crossweld to exercise any right under this Contract does not operate as a waiver and the single or partial exercise of any right by Crossweld does not preclude any other or further exercise of that or any other right by Crossweld.

  23. Crossweld’s rights under this Contract are cumulative and not exclusive of any rights provided by law.

  24. Crossweld retains information in relation to the Customer and uses it only for the purpose for which it was collected or where the Customer would reasonably expect Crossweld to use or disclose information as part of normal business activities, or when required by law.  The Customer may access its information and correct and update that information at any time by contacting Crossweld.

  25. The Customer warrants the authority of all persons who sign documents (including order forms, Quotation acceptance and delivery acceptance) on behalf of the Customer.

  26. The Customer acknowledges that photographs, drawings, illustrations, weights, dimensions and other particulars accompanying, associated with or given in a Quotation, brochure, catalogue or any other descriptive literature are approximate of the goods offered but may be subject to alteration by the manufacturer or Crossweld without notice.  To the extent permitted by statute, any performance data is an estimate only.

  27. The Customer acknowledges that it has the benefit of any warranty for good supplied as provided by the manufacturer of those goods and statutory warranties (pursuant to QBCC Act).  Crossweld will rectify any Defects in the Works that are notified to it in writing by the Customer within 12 months of the completion of the Works.

  28. The Customer must not transfer or assign any right or liability under this Contract without the prior written consent of Crossweld.  Crossweld may subcontract the performance or part or all of the Works without requiring the Customer’s consent.

  29. If the Customer is a building contractor (as defined in the QBCC Act) then the following additional clauses apply:

    1. the Customer warrants that it holds all licences and permits required by law and including pursuant to the QBCC Act;

    2. in addition to the provisions in clause 11, the Customer will be in default of this Contract if:

    3. it ceases to hold those licences or permits;

    4. the agreement between the Customer and its principal is terminated or suspended due to default of the Customer.

  30. This Contract is subject to the provisions of the QBCC Act and the Building and Construction Industry Payments Act 2004.

  31. Unless the context requires otherwise:

    1. the Customer means the addressee of a quotation, or in the absence of a quotation, the purchaser of goods and/or services from Crossweld;

    2. Quotation means a quotation issued by Crossweld;

    3. Accepted Quotation means a Quotation that Crossweld is bound to or has elected to perform;

    4.  Works means the Works specified in the Accepted Quotation, subject to variations in accordance with this Contract;

    5. Site means the place specified in the Accepted Quotation where (if applicable) the Works are to be installed or delivered (as the case may be);

    6. Consideration means the amount to be paid for carrying out the Works as specified in the Accepted Quotation and as varied in accordance with this Contract;

    7. Interest Rates means the penalty rate stated in section 67P of the QBCC Act or if no amount is so stated or that section does not apply the interest rates is the aggregate of the rate charged by Crossweld’s principal bankers on unsecured overdrafts of $50,000.00 or less plus 2% per annum,

    8. QBCC Act means the Queensland Building and Construction Commission Act 1991;

    9. Defects means any part of the Works that due to the default or negligence of Crossweld is defective, incomplete or not otherwise carried out in accordance with this Contract.

  32. Interpretation; In this document unless the context otherwise requires:

    1. the singular includes the plural and vice versa;

    2. words denoting any gender include all genders;

    3. reference to a person includes any other entity recognised by law and vice versa;

    4. where a word or phrase is defined its other grammatical forms have a corresponding meaning;

    5. any reference to a party to this document includes its successors and permitted assigns;

    6. any reference to any agreement or document includes that agreement or document as amended at any time;

    7. the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;

    8. the expression at any time includes reference to past, present and future time and the performance of any action from time to time;

    9. an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;

    10. an agreement, representation or warranty on the part of two or more persons is for the benefit of them jointly and severally;

    11. reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.

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0419 561121 ~  151 Brown Street Bungalow 4870

QBCC Licence 1146408 & 1144747 (Nominee Supervisor)

Air Handling and Duct Installation & Non Structural Metal Fabrication and Installation

© 2016 Crossweld Fabrications Pty Ltd.