Lark & Creese Pty Ltd – Terms of Trade (“Terms”)

2 Quotations

2.1 Each quotation that we issue:
(a) is an estimate only;
(b) is not an offer or obligation to perform any Services;
(c) is exclusive of GST;
(d) remains valid for acceptance for a period of thirty (30) days from the date of quotation, unless withdrawn by us before a contract for supply is formed; and
(e) contains a price on the basis that all Services are performed, during Business Hours,
unless the quotation states otherwise.
2.2 Quotations provided orally or via email during initial consultations, are subject to written confirmation.
2.3 A quotation may include additional terms or conditions, which will supplement these Terms.
2.4 Should you wish to have Services performed outside Business Hours please let us know as additional charges may apply.

3 Formation of contract

3.1 We are not obliged to provide Services until after a contract for supply is formed.
3.2 A contract for supply is formed, and you have accepted these Terms, when:
(a) you have placed an Order with us; and
(b) we have received any deposit we have required from you in respect of the Order before progressing it; and
either we have:
(c) accepted your Order in writing; or
(d) performed any Services following receipt of your Order.
3.3 If you revoke an Order:
(a) prior to the formation of a contract for supply then:
(i) we will refund you any deposit you have paid in respect of that Order; and
(ii) you will not be required to pay any fee for the cancellation of the Order; or alternatively
(b) after the formation of a contract for supply then unless we are in breach of the contract for supply:
(i) you must pay all our reasonable costs associated with fulfilment of your Order; and
(ii) we may apply any deposit you have paid towards those costs.

4 Customer Material

4.1 You warrant and represent to us that all Customer Material:
(a) is accurate and correct; and
(b) will not infringe the Intellectual Property Rights of any third-party.
4.2 You grant us a non-exclusive, non-transferable, royalty free, perpetual, worldwide licence to use the Customer Material for the purposes of supplying the Goods or Services.

5 Provision of Services

5.1 If requested by us, you must provide us with:
(a) all the relevant information relating to your requirements, and keep us updated with alterations and amendments to design and other works, contact details and other relevant information as it comes available; and
(b) any information relating to our health and safety in relation to the site specified in the Agreement (including but not limited to domestic animals, asbestos, chemical and environmental hazards).
5.2 You must ensure that Site amenities required by our Personnel, including water, electricity (i.e. 240 volt), and sanitary accommodation (i.e. serviced toilet facilities) are made available for our Personnel’s use (at no cost to us or our Personnel). If you fail to make such amenities available to our Personnel, we will be entitled to invoice you any additional costs we incur in procuring or providing such amenities.
5.3 Prior to us performing the Services, you must:
(a) restrict any animals from accessing the Site; and
(b) inform us of any special requirements pertaining to the installation (such as Site-specific policies or safety requirements).
5.4 If requested by us, you must:
(a) obtain, at your expense, all Approvals relevant to the Site necessary for us to supply the Goods or perform the Services;
(b) engage a licensed service locator to clearly mark the location of all services above and below ground, including drains, pipes, sewers, mains, and telecommunications and electricity cables;
(c) cover all swimming pools, spas, ponds, and other bodies of water near the Site,
prior to us performing the Services.
5.5 The costs and fees contemplated by this clause 5 can be paid directly to the appropriate authority or you may provide us with the funds.
5.6 If commencement or completion of the Services is delayed due to any event beyond our reasonable control, such as:
(a) materials unavailability;
(b) delays due to government authorities, other consultants, or contractors;
(c) unsuitable weather conditions; or
(d) your failure to:
(i) have the Site ready for us to perform the Services; or
(ii) notify us the Site is ready for us to perform the Services,
then you agree we may extend the time for commencement or completion of the installation (as the case may be) by a period of time equal to the delay.

6 Price

6.1 The price payable for the Services will be the price agreed in writing at or before the time a contract for supply of which these Terms form part is formed.
6.2 We may vary our price by notice to you if you request:
(a) we obtain any necessary Approvals you have not obtained;
(b) the Services be rendered outside Business Hours;
(c) different Services to be supplied to the contract for supply; or
(d) that we delay provision of the Services for ninety (90) days or more.
6.3 You acknowledge and agree that additional Services required beyond the scope of the original contract for supply may require a new authorisation to be completed and new price agreed prior to us performing the Services.
6.4 Where we vary the price or rates payable for the Services pursuant to clauses 6.2 and 6.3, we will notify you of the new price/rates. Thereafter you may reject the new price/rates within seven (7) days and terminate the contract for supply without any cost or penalty to you, otherwise you agree that the price/rates will apply to the contract.

7 Payment terms

7.1 Unless you have a Credit Facility with us which is not in default:
(a) deposits we have requested must be paid before we commence providing Services;
(b) you must pay for all Services on a progressive basis as performed.
7.2 Payment may be made by cash, cheque, electronic funds transfer, Visa, or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.
7.3 We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.
7.4 You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.
7.5 You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding.

8 Claims

8.1 Clause 8.2 only apply if the contract for supply is not a Consumer Contract and not a Small Business Contract.
8.2 You must:
(a) within seven (7) days of the performance of the services, give us notice in writing, with particulars, of any Claim that the Services performed are not in accordance with the contract for supply; and
(b) at our request, provide us with evidence (to our satisfaction) of any Claim. If you fail to notify us in accordance with clause 8.2(a), then, to the extent permitted by law, the Services are deemed to have been performed in accordance with the contract for supply.

9 Default

9.1 Clauses 9.2 to 9.4 apply if you fail to pay sums to us when they fall due.
9.2 We may charge you interest on the outstanding debt (including any judgment debt) at the rate of 10% per annum.
9.3 We may suspend or cease the supply of any further Services to you.
9.4 We may require pre-payment in full for any Services which have not yet been provided.

10 Indemnity

10.1 If you default in the performance or observance of your obligations under any contract of which these Terms form part, then:
(a) we will take steps to mitigate our loss and act reasonably in relation to any default by you; and
(b) we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and
(c) if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.
10.2 Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.
10.3 Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any contract of which these Terms form part.

11 Limitation of liability

11.1 No party is liable to the other party for any Consequential Loss, including under clause 9, however caused arising out of or in connection with any contract for supply of which these Terms form part.
11.2 While we will take reasonable endeavours to meet any estimated delivery date or estimated time for Services, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.
11.3 If the contract for supply is not a Consumer Contract or a Small Business Contract then, to the extent permitted by law, our liability is limited to:
(a) us supplying the Services again; or
(b) us paying you the cost of having equivalent Services supplied.

12 Termination

A party may, with immediate effect, terminate any contract for supply of which these Terms form part by notice in writing, if the other party:
(a) commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
(b) has failed to pay sums due to the party within seven (7) days; or
(c) has indicated that it is, or may become, insolvent; or
(d) ceases to carry on business; or
(e) comprises an entity which is the subject of the appointment of receivers or managers; or
(f) comprises a natural person who:
(i) has committed an act of bankruptcy; or
(ii) has been made bankrupt;
(g) comprises a corporation which:
(i) enters into voluntary administration;
(ii) is subject to a deed of company arrangement; or
(iii) is subject to the appointment of liquidators or provisional liquidators.

13 Confidentiality, privacy, and data protection

13.1 You and your personnel must keep the Confidential Information confidential and secure and must not disclose or otherwise make available any Confidential Information to any other person.
13.2 You consent to us publishing or otherwise making available information in relation to you (and the delivery of Goods or provision of the Services) to comply with all applicable laws.
13.3 You acknowledge that you will be bound by the Privacy Act 1988 (Cth) with respect to any act done or practice engaged in by you for the purposes of the Agreement, in the same way and to the same extent as the Privacy Act 1988 (Cth) would have applied to us in respect of that act or practice had it been directly done or engaged in by us.
13.4 Neither party will disparage the other party, where disparage means any act or omission, including written or verbal communication, which is intended, or would reasonably be expected, to harm the other party or its reputation or which would reasonably be expected to lead to unwanted, negative, or unfavourable publicity to the other party.

14 Trustees

14.1 If you are the trustee of a trust (whether disclosed to us or not), you warrant to us that:
(a) you enter into the contract for supply in both your capacity as trustee and in your personal capacity;
(b) you have the right to be reasonably indemnified out of trust assets;
(c) you have the power under the trust deed to enter into the contract for supply; and
(d) you will not retire as trustee of the trust nor appoint any new or additional trustee without first notifying us in writing and having the new or additional trustee sign an agreement on terms substantially the same as those governing your Credit Facility (where applicable).
14.2 You must give us a true and complete copy of the trust deed upon request.

15 Variation

We may amend these Terms in the future by notifying you in writing. The amended Terms will thereafter apply to each Order you place unless you earlier give us written notice in advance of placing a further Order.

16 Assignment

A party may only assign its rights under the contract for supply with the written consent of the other party.

17 Subcontracting

You acknowledge and agree that, given the nature of the Services, we may be reasonably required to subcontract the Services we are to provide (or any part of those Services), however, doing so will not relieve us of any of our obligations to you under any contract of which these Terms form part.

18 Conflicts and Inconsistencies

If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):
(a) any additional terms or conditions contained in our quotation applicable to the supply of Services;
(b) any terms governing your Credit Facility; and
(c) these Terms.

19 Severance

If any part or term of our agreement with you (including any Credit Facility) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.

20 Governing law and jurisdiction

20.1 Our relationship is governed by and must be construed according to the law applying in the State of Tasmania.
20.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Tasmania with respect to any proceedings that may be brought at any time relating to our relationship.

21 Definitions

In these Terms, unless the context otherwise requires, the following definitions apply.
21.1 Approval means any authorisation, assessment, accreditation, determination, registration, clearance, permit, licence, consent, certificate, or other approval obtained or required or applying in connection with any contract of which these Terms form part.
21.2 Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.
21.3 Business Hours means between 09:00am to 5:00pm on a day that is not a Saturday, Sunday, or gazetted public holiday in the place where the Services are, or are to be, supplied.
21.4 Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a contract for supply.
21.5 Confidential Information means any technical, scientific, commercial, financial or other information of, about or in any way related to, us, including any information designated by us as confidential, which is disclosed, made available, communicated or delivered to you, but excludes information which:
(a) is in or which subsequently enters the public domain, other than as a result of a breach of an obligation of confidentiality;
(b) you can demonstrate was in you possession prior to the date of the Agreement;
(c) you can demonstrate was developed by you independently of any disclosures previously made by us;
(d) is lawfully obtained by you on a nonconfidential basis from a person who is not bound by a confidentiality agreement with us or otherwise prohibited from disclosing the information to you; or
(e) is required to be disclosed pursuant to law, court order or other legal process.
21.6 Consequential Loss includes any:
(a) consequential loss;
(b) loss of anticipated or actual profits or revenue;
(c) loss of production or use;
(d) financial or holding costs;
(e) loss or failure to realise any anticipated savings;
(f) loss or denial of business or commercial opportunity;
(g) loss of or damage to goodwill, business reputation, future reputation, or publicity;
(h) loss or corruption of data;
(i) downtime costs or wasted overheads; or
(j) special, punitive, or exemplary damages.
21.7 Consumer Contract has the meaning given to this term in section 23(3) of the Australian Consumer Law.
21.8 Credit Facility means an account we have opened for you on which we may, from time to time, extend you with additional time to pay for our Services and associated charges.
21.9 Customer, you means the person or other entity who has placed an Order with us for the supply of Services (or the person on whose behalf an Order is placed).
21.10 Customer Material means all information and documentation provided to us by you (or on your behalf) in the course of us supplying the Services.
21.11 Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether present or future, and whether protectable by statue, at common law or in equity, including rights in relation to copyright, trade secrets, know how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions, including the right to apply for registration of any such rights.
21.12 Order means a written or oral order placed by you requesting that we provide Services.
21.13 Personnel means officers, employees, and agents engaged by each party (but does not include the other party) and, in the case of the Supplier, includes its subcontractors (and any employee of those subcontractors).
21.14 Services means all services performed by us, as described on our quotation, invoice, or any other form issued by us.
21.15 Site means the location where the Services are to be performed.
21.16 Small Business Contract has the meaning given to this term in section 23(4) of the Australian Consumer Law.
21.17 Supplier, we, us means Lark & Creese Pty Ltd (ACN 606 603 061).

22 Interpretation

In these Terms, unless the context otherwise requires:
22.1 A time is a reference to the time zone of Hobart, Australia unless otherwise specified.
22.2 $, dollar, or AUD is a reference to the lawful currency of Australia.
22.3 A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee.
22.4 A right includes a benefit, remedy, authority, discretion, or power.
22.5 The singular includes the plural and vice versa, and a gender includes other genders.
22.6 “In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
22.7 If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
22.8 Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
22.9 A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.