STANDARD TRADING TERMS
1. These are the Standard Trading Terms made by Steven Murphy Electrical Contractors (“SMEC”) for the supply of Goods and/or Services. Upon agreement of the Customer to such terms herein, these Terms shall become an integral part of the Contract (“the Contract”) so created.
2. In these terms, including the Term listed before and the Terms listed after this Term, unless the contrary intention appears, the words and phrases underlined below are defined as follows: “Services”: The same meaning as “services” in clause 68A (1)(b) of the Trade Practices Act 1974 (Commonwealth of Australia). “Acceptance” In relation to the supply of Goods and/or Services, the event described in Terms 7.1 through 7.4.
Fixed Price: Any instance where SMEC is to supply Goods and/or Services for a predetermined and fixed consideration specified in the Proposal.
“Time and Materials”: Any instance where SMEC is to supply Goods and/or Services for a consideration which is a product of the number of hour of Service actually supplied and a hourly rate specified in the Proposal plus remuneration for materials used in conjunction with supplying the service.
3. Where SMEC has offered to supply Goods and/or Services at a Fixed Price:
(a) Unless otherwise stated in the Proposal, prices for supply of Goods and/ or Services to a destination in Australia shall include all Australian taxes and duties including the Goods and Services Tax; but
(b) If the Goods and/or Services are to be exported out of Australia, the price shall exclude all duties, taxes or imposts payable.
4. 4.1 If and only if SMEC has offered to supply Goods and/or Services on a Time and Materials basis, such offer and any Contract ensuing from it shall be subject to Terms 4.2 through 5.
4.2 The essence of the supply of Goods and/or Services on a Time and Materials basis is that SMEC will supply a certain number of hours of a suitably skilled Person’s t time in return for a fee payable by the Customer per hour of Service supplied by SMEC at the rate specified in the Proposal.
4.3 All components, materials and third party services used by SMEC in supplying time and the Customer shall pay for materials services to SMEC at the rate of SMEC’s purchase cost plus a commission. The amount of the commission shall be as specified in the Proposal.
5. 5.1 The Customer shall reimburse SMEC for all additional expenses incurred by SMEC as a consequence of supplying Goods and/or Services outside the Perth Metropolitan Area. Such expenses shall include but are not limited to travelling, accommodation, meals, drinks, laundry, communica- tions, delivery and transportation expenses
5.2 Cancellation Fee – In the event of a job not being required it is imperative that the customer should telephone the office before the Electrician is en route, and verbally cancel the call out. If this is not done a standard cancellation fee will be charged; this being the call out fee as stated by the office administrator. This cancellation fee applies to emergency after hours call outs and weekly day to day call outs.
6. All delivery and completion dates quoted by SMEC shall be Estimates only.
7. 7.1 Acceptance of Goods and/or Services shall occur as follows: where SMEC is to supply Goods only without Installation Service, Acceptance of the Goods shall be deemed to occur when the goods have passed from SMEC to the Customer or its agent and then seven (7) consecutive days have elapsed in which no valid Fault Report on the Goods has been received by SMEC.
7.2 Except as otherwise specified below, where SMEC is to supply Goods in conjunction with an Installation Service for the Goods, Acceptance of the Goods and installation Service shall occur when Installation of the Goods is completed and then seven (7) consecutive days have elapsed in which no valid Fault Report on the Goods or Installation Service has been received by SMEC.
7.3 Acceptance of Services other than services for Installation of Goods also supplied by SMEC shall occur after the elapse of seven (7)
consecutive days in which no valid Fault Report on the Service supplied by SMEC is received by SMEC.
7.4 Notwithstanding the above Terms, in the event Goods are lost or damaged after the risk of loss or damage has passed to the Customer but before Acceptance has occurred by way of one of the above Terms, Acceptance of the Goods shall be deemed to have occurred prior to the time of the loss or damage.
8. SMEC warrants that standard manufacturers’ warranties remain in effect unless either through the installation or by some act of the Customer on its behalf the manufacturer’s warranty is voided.
9. These Terms require the Customer to make Fault Reports to SMEC in certain circumstances. Fault Reports must refer to a Failure which actually occurred, be made to SMEC within seven (7) days of the occurrence of the failure, be given in accordance with the requirements for Notice and must contain: the name of the Customer, the identify of the Goods or Service in which the Failure has occurred, the date of occurrence of the Failure, documentary evidence of the Failure such as copies of screen displays or printed reports, a description of the events leading up to the Failure. Fault Reports not made in accordance with this Term may be disregarded by SMEC and will not delay Acceptance of any Goods and/or Services.
10. Notwithstanding anything to the contrary, SMEC’s liability shall be ultimately limited in accordance with section 68 of the Trade Practices Act
1974 (Commonwealth of Australia) to, at SMEC’s discretion:
(a) In the case of Goods:
(i) The replacement of the Goods or the supply of equivalent Goods; (ii) The repair of the Goods; (iii) The payment of the cost of replacing the Goods or of acquiring equivalent Goods; or (iv) The payment of the cost of having the Goods repaired;
(b) In the case of Services:
(i) The supplying of the Services again; or (ii) The payment of the cost of having the Services supplied again.
So that to the greatest extent permitted by Law, SMEC shall not be liable for any special, indirect or consequential loss or damage whether caused by the negligence of SMEC or its agents or any of its servants howsoever caused.
11. In the event the Customer fails to pay SMEC within seven (7) days of the issue of an invoice the Customer shall pay all credit agents’ fees and charged incurred by SMEC and additionally SMEC shall:
(a) Suspend or terminate the supply of further Goods and/or Services including Goods and/or Services required by the warranties in
(b) Issue Notice to the Customer demanding immediate payment or return of any Goods relating to the payment and within seven (7) days of receipt of such Notice the Customer shall either return to SMEC all Goods the property of SMEC, notwithstanding that the Goods may have been incorporated into some other product and/or may be necessary for the operation of the Customer’s business and including any and all copies of SMEC’s software made by the Customer; and/or
(c) Pursue and affect any other remedies, which may be available to SMEC to recover the debt, and it is agreed that all debt collection costs and legal fees will be deemed to be recoverable from the Customer.
(d) SMEC may lodge a caveat over the Customer’s interest in any real property which the Customer may have any interest now or in the future in order to secure the Customer’s obligations to effect payment of our invoice.
12. 12.1 The title in all Goods supplied by SMEC software shall be the sole and exclusive property of SMEC until such time as full payment for the
Goods is received SMEC.
12.2 In instances where the Customer has on-sold Goods the property of SMEC to a third party, the proceeds of such sale shall be held in trust by the Customer for SMEC until such time as the title in the Goods is expressly relinquished by SMEC.
13. Both the Customer and SMEC may, should the other party become insolvent, without prejudice to any other legal remedies available to the party, immediately Terminate any Contract ensuing from these Terms by Notice to the other party. For the purpose of this Term, insolvent shall mean “not able to pay all its debts as and when they become due” and shall carry the same interpretation as that phrase in section 95A (2) of the Corporations Act 2001 (Cth).
14. Any Notice required to be given under these Terms shall be duly given when:
(a) Passed to an agent of the party where such agent has acknowledged receipt of the Notice in writing; or Sent by facsimile to the
(b) last known facsimile receiver of the party where such transmission is shown on the activity report of the transmitting facsimile machine as transmitted without error to the telephone number of the destination facsimile machine.
15. Guarantor Clause
(a) In the event that the Customer is a company either incorporated in Australia or overseas (“Company”), such entity is required under this STT to provide a personal Guarantee by assuming the role of guarantor to this STT (“Guarantor”) The Guarantor hereby acknowledges
(b) that it is a condition of the Customer entering into this STT that the Guarantor gives the guarantee as set out in this clause 15 and that the Guarantor has received valuable consideration.
(c) The Guarantor unconditionally and irrevocably guarantees to SMEC the due and punctual payment by the Customer of payments due to SMEC. As a separate undertaking the Guarantor indemnifies SMEC against all liability or loss and any costs incurred by SMEC in
(d) respect of any breach or non performance by the Customer of any of the Customer’s obligations hereunder.
(e) It is agreed between the Guarantor and SMEC that the guarantee in (b) and indemnity in (c) are principal obligations and shall not be treated as ancillary to or collateral with any other obligation howsoever created and are in addition to and not in substitution for any other guarantee which the Customer may hold.
(f) This guarantee and indemnity may be enforced against any Guarantor without first having recourse to any security or guarantee or taking any other steps or proceeding against the Customer or any other Guarantor and the Guarantor waives any right it has to require otherwise.
16. Any modification to these Terms shall not be binding or effective unless agreed to in writing signed by a director of SMEC.
17. These Terms and any Contract ensuing from them shall be governed and construed in accordance with the law in force in the State of Western