WILMOT CIVIL PTY LTD
WILMOT PLUMBING AND PIPELINING
TERMS AND CONDITIONS
FOR SUPPLY OF SERVICES
These Terms and Conditions will prevail and take precedence over any conflicting terms and conditions contained in any purchase order or other documentation or printed form of the Customer, notwithstanding any language in the Customer’s forms to the contrary.
ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended.
Business Day means a day on which banking institutions generally are open for business in New South Wales but excluding Saturdays, Sundays and public holidays.
Contract means the contract between Wilmot P&P and the Customer comprising these Terms and Conditions and the Proposal.
Customer means the person to whom Wilmot P&P is contracted to provide the Services and who is ultimately responsible for payment.
Fees means the fees payable to Wilmot P&P for the Services, as detailed in the Proposal.
Guidelines means the specifications, acceptable use guidelines, limitations and other information provided by Wilmot P&P to the Customer, which sets out usage guidelines and limitations relating to the Services.
Proposal means a proposal and estimate given by Wilmot P&P to the Customer in relation to the provision of the Services.
Site means the place where the Services are to be provided.
SGA means the Sale of Goods Act 1923 (NSW) as amended.
Services means the services to be provided by Wilmot P&P to the Customer, as further detailed in the Proposal.
Wilmot P&P means Wilmot Civil Pty Ltd (ACN 161 466 904) trading as Wilmot Plumbing & Pipelining.
- Scope of Contract
- Proposals are valid for 30 days only. If the Customer wishes to offer to proceed with a Proposal, it shall provide Wilmot P&P with a copy of the Proposal executed by the Customer. This may be provided by fax or email or hard copy.
- This Contract becomes legally binding when Wilmot P&P notifies the Customer of acceptance by Wilmot P&P of the Customer’s offer. This may be provided by fax or email or hard copy or orally.
- Until the Customer has notified Wilmot P&P in writing that it wishes to proceed with a Proposal, Wilmot P&P may, without incurring any liability, revise or withdraw any Proposal provided to the Customer.
- This Contract constitutes the entire agreement between the parties relating to its subject matter and supersedes any previous agreement. No amendment to this Contract will be binding unless agreed in writing by Wilmot P&P.
- Wilmot P&P’s obligations
- Wilmot P&P will perform the Services in a professional and efficient manner, and with due care and skill and to the best of its knowledge and expertise.
- Wilmot P&P reserves the right to subcontract the provision of the Services.
- Customer’s obligations
- The Customer shall, as soon as practicable and taking into account all aspects of the Specifications, provide Wilmot P&P with all information, documents and any particulars of the Customer’s requirements.
- The Customer acknowledges that Wilmot P&P shall rely on any information, documents, particulars and drawings provided by the Customer.
- The Customer shall provide access onto the Site at such dates and times as may be agreed between Wilmot P&P and the Customer. In the event that the Customer wishes to postpone access, it shall provide Wilmot P&P with at least 2 Business Days’ notice.
- The Proposal sets out the fees payable to Wilmot P&P.
- In the event that the Customer requires additional work beyond that set out in the Proposal. Wilmot P&P will provide the Customer with a further Proposal, which shall include details of any further fees that will be payable.
- Billing and Payment
- Unless otherwise set out in the Proposal, 20% of the Fees shall be invoiced on entry into the Contract, 60% of the Fees shall be invoiced in stages during the provision of the Services and the balance of 20% shall be invoiced on completion of the Services.
- Unless otherwise set out in the Proposal, invoices are due for payment in full within 30 days. Wilmot P&P shall not be required to commence work until its initial invoice for 20% of the Fees has been paid.
- Unless otherwise agreed to in writing by Wilmot P&P, the Fees shall be the price in Australian dollars as set out in the Quotation.
- Unless otherwise agreed, Fees with respect to any taxable supply are exclusive of GST.
- The Customer must pay to Wilmot P&P in addition to the Fees:
- any cancellation/delay fees payable under clause 9.
- The Customer is not entitled to withhold payment or make any deduction from the Price in respect of any set-off, counter-claim or dispute.
- If the Customer fails to pay the Fees or any other sum payable under the Contract, Wilmot P&P will be entitled to charge interest on the outstanding sum from the date when due until payment at the rate of two per centum per annum above the maximum overdraft rate of Wilmot P&P’s bankers for the time being in force.
- Statutory rights
- In circumstances where the Customer is acquiring Services from Wilmot P&P as a ‘consumer’ for the purposes of (and as defined in section 3 of Schedule 2 of) the ACL or as a ‘buyer’ for the purposes of the SGA, Wilmot P&P acknowledges and agrees that certain statutory guarantees and rights shall apply to the Customer as provided by relevant laws but subject to these Terms and Conditions as applicable and where permitted by relevant laws.
- Nothing in the Contract excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the ACL, the SGA and any relevant State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of goods and services in various circumstances.
- If the Customer is acquiring Services from Wilmot P&P as a ‘consumer’, Wilmot P&P’s total liability for breach of the Contract or breach of Wilmot P&P’s contractual obligations or duties at law or in equity (however arising) is limited, at the option of Wilmot P&P, to any one of the following:
- the supply of the Services again; or
- the payment of the cost of having the Services supplied again.
- If section 23 of the ACL applies to any provisions in the Contract, any such provision(s) shall be void to the extent it is unfair within the meaning of section 24 of the ACL.
- Limitation of liability
- The exclusions and limitations in this clause 8 are subject to clause 7 (Statutory Rights).
- All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to the Contract, that are not contained in it, are excluded to the fullest extent permitted by law.
- No warranty is given and Wilmot P&P will not be liable for any of the following:
- if the Customer fails to comply with the Guidelines, including (without limitation):
- if the load on any liner installed exceeds the Long Term Flexural Modulus for the installed liner minimum thickness as set out in the Guidelines;
- if the liner is used other than in accordance with the Guidelines, including if any excluded chemicals are discharged through the liner; or
- any existing hydraulic services including sanitary drainage, water supply or storm water installations at the Site.
- Wilmot P&P shall not be liable in respect of any activity or damage at the Site that was concealed (whether by the Customer or a third party), or in relation to any incorrect information, documents, particulars and drawings provided by or on behalf of the Customer.
- Wilmot P&P will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by the Customer or any other person resulting from any act or omission by Wilmot P&P (including breach, termination or non-observance of any of the terms of the Contract.
- Subject to the provisions of the preceding clauses, the maximum liability of Wilmot P&P to the Customer arising out of the performance or non-performance of the Services by Wilmot P&P or arising out of these terms of engagement or any other act or omission by Wilmot P&P pursuant to common law or equity or any statute, unless otherwise agreed in writing between the Customer and Wilmot P&P shall be an amount equal to 50% of the Fees.
- Notwithstanding any other term of the Contract, Wilmot P&P shall not be liable for any failure to provide the Services occasioned by strike, workmen lockout, shortage of labour, lack of skilled labour, delay in transit, prohibitions or restrictions, fire, flood, hostility, civil commotion, adverse weather conditions, acts of God or other causes whatsoever (whether similar in nature to the foregoing or not) beyond Wilmot P&P’s control.
- Cancellation and delay
- The Customer may by written notice to Wilmot P&P cancel a Contract at any time prior to the commencement of the Services.
- In the event that the customer accepts Wilmot P&P’s proposal in writing and with a Purchase order or Work order to a contract amount, the customer agrees to pay the full amount of the Purchase order or Work order or allocate equivalent works for the delivery of the Purchase order or Work order contract total amount when site conditions limit Wilmot P&Ps ability to deliver the service or installation to the Purchase order or Work order amount.
- In the event that the Customer cancels the Contract within the period of 5 Business Days ending on the agreed date for provision of the Services, the Customer shall pay Wilmot P&P a cancellation fee of an amount equal to 25% of the Fees.
- In the event that the provision of Services is delayed at the request of the Customer or otherwise due to fire, flood or adverse weather conditions, the Customer shall pay Wilmot P&P for each day of delay (or part thereof) a delay fee of $530 per hour
- In the Event that the customer or principles site causes delays to the Wilmot P&P Major works lining crew, 3 x man crew the principle agrees to pay Wilmot P&P $580 per hour for delays directly caused by the principles advice or programming of the Wilmot P&P crew on the particular site in which the principle has accepted the works date program from Wilmot P&P. Wilmot P&P Require five business day’s notice in writing to re schedule or delay the crew to avoid the delay fee’s being charged to the principle or customer.( Please note this clause does not apply to Residential or house service customers)
- The Contract may be terminated by either party if there has been a substantial breach by the other party of its obligations and this has not been remedied within 14 days of receipt of written notice requiring the breach to be remedied. In the event of termination, the Customer shall pay Wilmot P&P for all Services performed to the termination date plus reasonable termination expenses.
- To the fullest extent permitted by law, the Customer shall indemnify and keep indemnified Wilmot P&P, its directors, officers, employees and agents, against all losses, damages or costs (whether incurred by or awarded against Wilmot P&P) that Wilmot P&P may incur as a result, whether directly or indirectly, of:
- any breach of this Contract by the Customer or its directors, officers, employees and agents;
- any negligent, wrongful or unlawful act or omission of the Customer or its directors, officers, employees and agents;
- any personal injury or death, or loss of, or damage to, property caused by any act or omission of the Customer or its directors, officers, employees and agents;
- breach of any law; or
- any infringement of a third party’s intellectual property or other rights.
- Dispute Resolution
- If a dispute arises between Wilmot P&P and the Customer in relation to the meaning or effect of this Contract or anything done or purported to be done by a party under this Contract (Dispute), each party must strictly comply with the provisions of this clause 12. Compliance with the provisions of this clause 12 is a condition precedent to the institution of proceedings in respect of the Dispute.
- A party seeking to resolve the Dispute must notify the other party of the existence and nature of the Dispute (Notification). Upon receipt of the Notification, the parties must refer the resolution of the Dispute to their nominees. If the Dispute has not been resolved within 30 days of receipt of the Notification, then the parties agree to refer the Dispute to arbitration in accordance with clause 3.
- Any dispute, controversy or claim arising out of, relating to or in connection with this Contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the rules of arbitration of the Australian Centre for International Commercial Arbitration. The seat of arbitration will be New South Wales, Australia. The language of the arbitration must be English.
- Performance of the Contract shall continue during any reference pursuant to this clause 12 unless the parties agree to suspend the Services or part thereof.
- This Contract will be construed and governed in all respects by the laws of the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of New South Wales.
- Where the Customer has provided Wilmot P&P with a nominated email address Wilmot P&P may send any notices to the Customer by emailing it to that email address.
- In the event that any provision of this Contract is held invalid or unenforceable, the remaining provisions of this Contract will remain in full force and effect.
- The Customer shall not assign its rights or obligations under this Contract without prior written consent of Wilmot P&P.
- No failure or delay by Wilmot P&P to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- Wilmot P&P take no responsibility for reinstatement of existing/original WC, toilet suits unless the product/WC toilet suit is replaced as new by Wilmot P&P. Any Drips or leaks shall incur call out fees if the product is not replaced as new.
- Wilmot P&P take no responsibility for any damages to existing WCs, toilet suits whilst removing toilet suit for access purposes
- Wilmot P&P take no responsibility for reinstatement of pavers or any existing landscape components whilst installing liners into existing host pipes to rehabilitate unless compaction, backfilling and reinstatement is stipulated in the quotation for the actual contract or scope of works at any property
- Additional robotic cutting if required to remove sections of failed CIPP Liners shall be capped at $480 per hour, unless quoted within the scope of works of a proposal
- Robotic cutting of concrete in pipelines shall be capped @ $780 per hour minimum of four hours, unless quoted within the scope of works of a proposal
- Robotic cutting of all other materials excluding concrete shall be capped @ $580 per hour minimum of four hours, unless quoted within the scope of works of a proposal
- Inclement Weather,
- In the event that weather causes Wilmot P&P the inability to carry out relining & pipeline construction works installations when the lining crew is working further then a 30KM radius from the Newcastle CBD or a 30Km radius from the city of Newcastle NSW the following terms will apply,
-The minimum daily costs for the CCTV & relining crew shall be $530 per hour or $4,160.00 per day, 4 x man crew
-The principle must give two business day’s notice to Wilmot P&P in writing to postpone or move a project until weather permits further works on site
-Wilmot P&P Must confirm in writing 5 business day’s prior to works commencing on any site outside the 30KM radius of the Newcastle CBD.
By Accepting Wilmot Civil Pty Ltd Quotations or proposals the customer or principle accepts the above terms and any tender or contract shall have the above terms added to the contract as special conditions to the contract.