1. Definitions

1.1 “Roofix” shall mean Roofix Australia Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Roofix Australia Pty Ltd.

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

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

1.6 “Price” shall mean the price payable for the Goods as agreed between Roofix 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 applicable 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 Roofix from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Roofix 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 Roofix.

3.4 The Customer shall give Roofix 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 Roofix as a result of the Customer’s failure to comply with this clause.

3.5 Goods are supplied by Roofix 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.

4. Price And Payment

4.1 At Roofix’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Roofix to the Customer in respect of Goods supplied; or
(b) Roofix’s current price at the date of delivery of the Goods according to Roofix’s current Price list; or
(c) Roofix’s quoted Price (subject to clause 4.2) which shall be binding upon Roofix provided that the Customer shall accept Roofix’s quotation in writing within thirty (30) days.

4.2 Roofix reserves the right to change the Price in the event of a variation to Roofix’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 not evident upon Roofix’s initial site inspection or as a result of price increases and decreases in materials and labour costs) will be detailed in writing and charged for on the basis of Roofix’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 Roofix may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations and the value of materials delivered to the site but not yet installed.

4.4 At Roofix’s sole discretion a non-refundable deposit may be required.

4.5 At Roofix’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Customers shall be made by instalments in accordance with Roofix’s payment schedule.

4.6 Time for payment for the Goods 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 two and one half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and Roofix.

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 Goods

5.1 At Roofix’s sole discretion delivery of the Goods shall take place when the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Roofix or Roofix’s nominated carrier).

5.2 At Roofix’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 Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Roofix shall be entitled to charge a reasonable fee for redelivery.

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

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

5.6 The failure of Roofix to deliver shall not entitle either party to treat this contract as repudiated.

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

6. Risk

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

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

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

6.4 The Customer acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly the Customer agrees that these pipes cannot be fixed by simply removing plant/tree root growth or cleaning the drain, therefore no warranty is provided against this situation arising again in the future and in respect of any work carried out in relation thereto.

6.5 Where Roofix is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and Roofix shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.

6.6 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 Roofix against any costs incurred by Roofix as a consequence of such discovery. Under no circumstances will Roofix handle removal of asbestos product.

6.7 Roofix shall accept no responsibility for Work undertaken by any third party contractor employed by Roofix. If the Customer believes that they have any claim in relation to Works undertaken by that third party then said claim must be made against the third party contractor in the first instance.

7. Damages

7.1 The Customer shall ensure that Roofix has clear and free access to the work site at all times to enable them to undertake the works. Roofix shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Roofix.

8. Underground Locations

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

8.2 Whilst Roofix will take all care to avoid damage to any underground services the Customer agrees to indemnify Roofix in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause

9.1 Roofix and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Roofix all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to Roofix in respect of all contracts between Roofix and the Customer.

9.2 Receipt by Roofix 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 Roofix’s ownership or rights in respect of the Roofix Australia Pty Ltd – Terms & Conditions of Trade Goods shall continue.

9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Roofix shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from Roofix to the Customer Roofix may give notice in writing to the Customer to return the Goods or any of them to Roofix. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) Roofix shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to Roofix then Roofix or Roofix’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as Roofix has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Roofix for the Goods, on trust for Roofix; and
(f) the Customer shall not deal with the money of Roofix in any way which may be adverse to Roofix; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Roofix; and
(h) Roofix can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Roofix will be the owner of the end products.

10. Defects

10.1 The Customer shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Roofix of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Roofix an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Roofix has agreed in writing that the Customer is entitled to reject, Roofix’s liability is limited to either (at Roofix’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods 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 Goods, or repair of the Goods, or replacement of the Goods.

11. Returns

11.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 10.1; and
(b) Roofix has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) Roofix will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

11.2 Roofix may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.

11.3 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.

12. Warranty

12.1 Subject to the conditions of warranty set out in clause 12.2 Roofix warrants that if any defect in any workmanship of Roofix becomes apparent and is reported to Roofix within twelve (12) months of the date of delivery (time being of the essence) then Roofix will either (at Roofix’s sole discretion) replace or remedy the workmanship.

12.2 The conditions applicable to the warranty given by clause 12.1 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 Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Roofix; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods 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 Roofix shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Roofix’s consent.
(c) in respect of all claims Roofix 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.

12.3 For Goods not manufactured by Roofix, the warranty shall be the current warranty provided by the manufacturer of the Goods. Roofix 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 Goods.

13. Intellectual Property

13.1 Where Roofix has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Roofix, and shall only be used by the Customer at Roofix’s discretion.

13.2 The Customer warrants that all designs or instructions to Roofix will not cause Roofix to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Roofix against any action taken by a third party against Roofix in respect of any such infringement.

13.3 The Customer hereby authorises Roofix to utilise images of the Goods designed or drawn by Roofix in advertising, marketing, or competition material by Roofix.

14. Default & Consequences of Default

14.1 Interest on invoices that remain overdue after ninety (90) days shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at Roofix’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 Roofix.

14.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Roofix from and against all costs and disbursements incurred by Roofix in pursuing the debt including legal costs on a solicitor and own client basis and Roofix’s collection agency costs.

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

14.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.

14.6 Without prejudice to Roofix’s other remedies at law Roofix shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Roofix shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Roofix becomes overdue, or in Roofix’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 Roofix 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 Roofix or Roofix’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 Roofix (or Roofix’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 Roofix elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Roofix from and against all Roofix’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 Roofix or Roofix’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 this clause 15.1.

16. Dispute Resolution

16.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

17. Compliance with Laws

17.1 The Customer and Roofix shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.

17.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.

17.3 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/ construction sites and any other relevant safety standards or legislation.

18. Cancellation

18.1 Roofix may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Roofix shall repay to the Customer any sums paid in respect of the Price. Roofix shall not be liable for any loss or damage whatsoever arising from such cancellation.

18.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Roofix (including, but not limited to, any loss of profits) up to the time of cancellation.

18.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

19. Privacy Act 1988

19.1 The Customer and/or the Guarantor/s agree for Roofix to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by Roofix.

19.2 The Customer and/or the Guarantor/s agree that Roofix may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.

19.3 The Customer consents to Roofix being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

19.4 The Customer agrees that personal credit information provided may be used and retained by Roofix for the following purposes and for other purposes as shall be agreed between the Customer and Roofix or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Roofix, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/
or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.

19.5 Roofix may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

20. Building and Construction Industry Security of Payments Act 1999

20.1 At Roofix’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 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 Security of Payments Act 1999 of New South Wales, 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 New South Wales and are subject to the jurisdiction of the courts of New South Wales.

21.3 Roofix 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 Roofix of these terms and conditions.

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

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 Roofix nor to withhold payment of any invoice because part of that invoice is in dispute.

21.6 Roofix 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 Roofix may review these terms and conditions at any time. If, following any such review, Roofix Australia Pty Ltd – Terms & Conditions of Trade there is to be any change to these terms and conditions, then that change will take effect from the date on which Roofix 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 Roofix to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Roofix’s right to subsequently enforce that provision.