1.1.     In this contract:

1.1.1.           ACL means Australian Consumer Law

1.1.2.           Agreement means this contract and terms and conditions.

1.1.3.           Callout Fee means the fee described in clause 2.1.

1.1.4.           Contractor means POINT PLUMBING PTY LTD, its successors and assignees or any person acting on behalf of and with the authority of POINT PLUMBING PTY LTD.

1.1.5.           Contract Price means the price of the Works as set out on the first page of the Agreement.

1.1.6.           Customer means the person(s) described on the front page of this Agreement, or any person(s) acting on behalf of and with the authority of the Customer or any person(s) acting on behalf of and with authority of the owner or occupier of the premises (including permitted assignees, agents, successors or legal personal representative).

1.1.7.           Excavation Work means any work involved in relocating, repairing or removal of any underground services, rock or obstruction or digging in the ground beyond 1.5 metres from the ground surface level.

1.1.8.           Urgent Works means

1.1.8.1.        Works that the Customer has requested be completed on an urgent basis; or

1.1.8.2.        Works that are done on an emergency basis (“Emergency Works”).

1.1.9.           Materials means the materials required in order to complete the Works.

1.1.10.         Progress Payment Schedule means the progress payment schedule that may be set-out in this Agreement.

1.1.11.         Search and Investigation Work means work involved in locating a plumbing problem and includes accessing roofs, under-spaces of buildings, locating gas leaks or locating water leaks.  Search and Investigation Work does not include costs of rectification or the Works.

1.1.12.         Third Party means any person or entity which has agreed to provide finance to the Customer for the payment of amounts under this Agreement.

1.1.13.         Works means all work (including the supply of Materials) undertaken by the Contractor described in this Agreement. Works does not include any Search and Investigation Work unless the Agreement (or associated quote) specifies otherwise.

2.      Refund of Call Out Fee

2.1.     The Contractor has charged the Customer a callout fee for the dispatch of a Contractor (or other person) to the Customer’s premises in relation to the Works. The Customer has agreed to pay the callout fee by the end of the day on which a Contractor is dispatched to the Customer’s premises.

2.2.     The Contract Price will be reduced by the amount of the Callout Fee if:

2.2.1.           The Callout Fee was charged to the Customer within 14 days of this Agreement being entered into. 

2.2.2.           The Agreement is entered into by the Customer within 7 days of a Contractor or other person being dispatched to the Customer’s premises; and

2.2.3.           The Works do not relate to an emergency; and

2.2.4.           The Works are not Urgent Works; and

2.2.5.           A Contractor or other person is dispatched to the Customer’s premises between the hours of 7:00AM – 4:00PM (AEST) between Monday to Friday (excluding gazetted public holidays within the meaning of the Public Holidays Act 2010 (NSW)) or at any time between 23 December and 14 January of the following calendar year (“the holiday period”).

3.      Agreed Variations

3.1.             All variations to this Agreement must be in writing, dated and signed by both parties.

3.2.             If the Customer requests a variation to the Works, the Contractor will give the Customer a written variation document detailing the Works and an amended Contract Price (including any variation to the costs of home building compensation insurance or cover entered into by the Contractor in respect of the Works) and require written acceptance by the Customer of the variation before commencing Works on the variation.

3.3.             If the Contractor requests a variation to the Works, it will provide a description of that variation, state any effect the variation will have on the Agreement (including but not limited to the Contract Price) and require written acceptance by the Customer of the variation before commencing Works on the variation.

4.      Cooling Off Period – For a Contract Exceeding $20,000.00

4.1.     If, and only if, section 7BA of the Home Building Act 1989 (NSW) applies to this Agreement then the Customer shall be able to terminate this contract within 5 clear business days following the later of:

4.1.1.   Receipt from the Contractor of a signed copy of this Agreement or

4.1.2.    The Customer becoming aware that they were entitled to be given a copy of the contract.

4.2.     To terminate this Agreement the Customer must provide the Contractor with a written notice which clearly states that the Customer rescinds the contract within the time specified in this clause and the Customer must give that notice to the Contractor personally or leave it at the Contractor’s address as stated in this Contract or post it by registered post to the Contractor’s address in this contract.

4.3.     Once the withdrawal notice is given to the Contractor then the contract is taken to be rescinded from the time it was signed, and the Contractor may retain out of any money already paid to it the amount of any reasonable out of pocket expense that the Contract incurred before the contract was rescinded. The Contractor must refund all other monies paid to the Customer under the Contract.

4.4.     Nothing in this clause affects the Contractor’s entitlement to be paid a reasonable price for any Works undertaken prior to the date the contract was rescinded. The customer shall not be liable to the Contractor in any other way for withdrawing from the Contract.

4.5.     For the avoidance of doubt, this clause only applies if the Contract Price exceeds the prescribed amount under s7BA of the Home Building Act 1989 (NSW) (which at the time of drafting was $20,000).

5.      Unforeseen Circumstances

5.1.     Notwithstanding clause 4, the Contractor may carry out any necessary additional Works in the event of:

5.1.1.               Unforeseeable problems which are only revealed when undertaking the Works which the Contractor considers should be rectified for the safe completion of the Works;

5.1.2.               Any Works that the Contractor considers are required to be undertaken urgently and it is not reasonably practicable to obtain written acceptance from the Customer before commencing the variation;

5.1.3.               The Contractor being instructed to undertake extra Works by any statutory authority.

5.2.     Any additional Works performed pursuant to this clause are to be treated as a variation.

6.      Delivery of Works

6.1.     The Contractor will use its best endeavours to commence and complete the Works within a reasonable time.

6.2.     The Contractor will advise the Customer of the estimated date upon which the Works will commence and be completed.

6.3.     The dates for commencement and completion of the Works are estimates only, and the Contractor shall not be held liable for any costs incurred by the Client due to any unforeseen delays in completing the Works (including but not limited to delays with the delivery of materials).

6.4.     Failure to meet any estimated date for completion of the works does not enable the Customer to terminate the Agreement.

6.5.     The Works shall be deemed to be practically complete when the Works carried out under this Agreement have been completed in accordance with the description of works in this Agreement (including any plans and specifications if applicable) and those Works can be used by the Customer for their intended purpose, are free of major defects, and all other statutory requirements have been met.

6.6.     Unless otherwise agreed in writing between the parties, the Contract Price does not include work for any Excavation Work.

6.7.     If the Works involve any Excavation Work, then the Contractor will take all reasonable care to avoid damages to any underground services, however the Customer agrees to indemnify the Contractor in respect of any and all liability claims, loss, damage, costs and fines as a result of damage to services.

6.8.     In delivering the Works the Contractor may engage subcontractors to conduct the Works.

6.9.     Any subcontractors engaged by the Contractor will be qualified and licensed and are technically capable of being able to carry out the Works in competent manner. Any subcontractors engaged by the Contractor will have appropriate and relevant policies of insurance.

6.10.  The Contractor is entitled to retain, by way of lien, any reports or documents relating to the Works which are in the possession of the Contractor until the Contract Price or money due to the Contractor have been paid for the Works.

7.      Customer’s Responsibilities

7.1         The Customer shall provide the Contractor with clear and free access to the worksite to enable the Contractor to complete the Works and or remedy any defects after the works are complete. If the Works are interrupted by the failure of the Customer to make the premises available for access by the Contractor then additional costs may be invoiced to the Customer.

7.2         The Contractor will require the use of power, water and shelter whilst at the Customer’s premises and the Customer will make these available for the duration of the Works.

7.3         If the Contractor requires access to the inside of the Customer’s premises, then the Customer must be present at the premises all times while the Works are being undertaken unless the parties otherwise agree.

7.4         The Customer agrees that it will:

7.4.1       remove from the vicinity of the work area any furniture, personal effects or other property likely to impede the Contractor in order to minimise the risk of injury or any possible damage.

7.4.2       Remove all fragile items from the work area. Breakages and damages are the responsibility of the Customer. All care is taken but no responsibility is accepted by the Contractor in this regard.

7.4.3       Remove all rubbish and work from the work area unless the parties agree otherwise.

7.5           The Contractor will exercise all reasonable care to minimise disturbance to the work area and the Customer’s premises, however the Works may involve disturbing the premises. The Agreement does not include the cost of any restoration work to the work area or Customer’s premises.

8.      Payment Terms

8.1.     Time for payment shall be of the essence and will be stated in any invoice. If no time is stated, then payment shall be due on delivery of the invoice.

8.2.     If payment is not made when due, then the Contractor may remove any and all materials that were installed as part of the Works.

8.3.     Any deposit shall be payable by the close of business on the day the Agreement is entered into by the Customer.

8.4.     If a Progress Payment Schedule is specified in this Agreement the Customer will make progress payments for each completed stage of the Works as specified in the Agreement.

8.5.     If no Progress Payment Schedule is specified in this Agreement, and the Contract Price does not exceed the amount prescribed under s8A of the Home Building Act 1989, the Contractor may at its absolute discretion request progress payments of any specified amount or percentage of the contract price following the completion of any part of the Works.

8.6.     The Contract Price shall be increased by the amount of GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in the contract.

8.7.     If any part of the Contract Price is paid by credit or debit card then the Customer will also pay the Contractor a payment surcharge the amount of which will be presented to the Customer. That surcharge fee is payable at the same time the payment is made.

8.8.     If any part of the Contract Price is made by way of electronic funds transfer into a bank account nominated by the Contractor then the Customer must provide to the Contractor a remittance advice with details of the transfer.

8.9.     If any part of the Contract Price is to be paid by way of finance provided by a third party (in relation to the Customer) (Third Party Financer), the Customer must apply for finance with the Third Party Financer and the finance must be approved by that third party before the Works will be carried out, subject to clause 8.11.

8.10.  The Third Party Financer may have their own terms, conditions and policies, and the Customer agrees and acknowledges that those terms, conditions and policies do not form part of this Agreement.

8.11.  The Contractor does not control the Third Party Financer, and the Contractor is not liable for any transaction the Customer may enter with them. The Customer is responsible for the use of the Third Party Financer, and payment under this Agreement to the Contractor is not subject to or condition upon the Customer being approved for finance by the Third Party Financer.

9.      Default in Payment

9.1.     Interest on overdue invoices shall accrue daily from the date when payment becomes due until the date of payment at a rate of 1.5% per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as before any judgment.

9.2.     If the Customer owes the Contractor any money the Customer shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client indemnity basis, the Seller’s Contract default fee, debt collection fees and bank dishonour fees).

9.3.     If the Customer has paid any part of the Contract Price which is dishonoured and the transaction is subsequently reversed the Customer is liable for the amount of the reversed transaction in addition to any further costs incurred by the Contractor where the reversal is unlawful, fraudulent, or in contravention of the Customer’s obligations of this Agreement.

9.4.     If the Contract Price (or any part thereof) is not paid in accordance with the time stipulated in any invoice arising out this Agreement, the Contractor may without any prior demand retake possession of any materials or goods used in the Works and may without notice to the Customer sell those materials or goods on such terms and in such manner as the Contractor may determine. For the purposes of recovering possession and without limiting the generality of the foregoing the Customer hereby irrevocably authorises and licenses the Contractor to enter any premises where such materials or goods are stored to take possession thereof.

10.    Quality of Work & Statutory Warranties

10.1.  The Contractor warrants that:

10.1.1.  The Works will be done with due care and skill and in accordance with the plans and specifications set out in the Agreement.

10.1.2.  All Materials supplied by the Contractor will be good and suitable for the purpose for which they are used and unless otherwise stated in the Agreement, those Materials will be new.

10.1.3.  The Works will be done in accordance with, and will comply with, the Home Building Act 1989 or any other law, including but not limited to the Building Code of Australia and the Environmental Planning and Assessment Act 1979 (NSW).

10.1.4.  The Works will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time.

10.1.5.  If the Works consist of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, The Works will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling.

10.1.6.  The Works and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the Customer expressly makes known to the Contractor (or person required to hold contractor license) or another person with express apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the Works is required or the result that the Customer desires the work to achieve, so as to show that the Customer’s relies on the holder’s or person’s skill and judgment.

10.2.  For Materials not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Contractor shall be under no liability except for the express conditions as detailed and stipulated in the manufacturer’s warranty.

10.3.  To the extent permitted by law, the Contractor does not accept responsibility for any minor imperfections in the Work (such as slight colour variations in metal).

10.4.  To the extent permitted by law, all claims against the Contractor regarding the quality, nature, fitness, suitability, conformance with description or defects in the Works must be made in writing to the Contractor within 7 days of the Works being completed.

10.5.  All statutory warranties, which can be lawfully excluded, are expressly excluded.

10.6.  To the extent permitted by law, the Contractor provides no warranty in relation to drain blockages, and the Customer acknowledges that blocked drains often indicate the presence of root growth or blockages from other external sources whereby the removal of an obstruction will not necessarily rectify the underlying issue.

10.7.  For the avoidance of doubt, if the Works involve clearing a blockage from a pipe, and that pipe becomes blocked after the initial clearing, any further work undertaken to unblock that drain will be treated as a separate Agreement or a variation.

10.8.  If the Works involve the clearing of any drains or pipes, and equipment used in the Works becomes caught, lodged or broken in a pipe or drain, the cost associated with the removal of that equipment shall be borne by the Customer. The parties agree that the Customer will not be responsible for the cost of repair or replacement of any such equipment.

10.9.  To the extent permitted by law, the Contractor provides no warranty in relation to removal of intermittent or lingering smells, and the Customer acknowledges that the Contractor’s Works will not necessarily remove intermittent or lingering smells which can be caused by other underlying issues.

10.10.                If the Contractor dispatches a Contractor (or other person) to the Customer’s premises in relation to the Customer’s warranty claim for the Works, the Contractor will only charge a callout fee if the Customer’s warranty claim does not relate to the Contractor’s Works.  The Customer has agreed to pay the callout fee by the end of the day on which a Contractor is dispatched to the Customer’s premises.

10.11.                To the extent permitted by law, the Contractor does not provide any warranty or accept any responsibility for any Materials supplied by the Customer.

11.    Overriding Legislation

11.1.  Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Competition and Consumer Act 2010, Home Building Act 1989, Home Building Regulations 2004, and Fair Trading Acts in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.

12.    Indemnity

12.1.  The Customer indemnifies the Contractor in respect of any claim, demand, or action commenced by any person (including the Customer) against the Contractor (or for which the Contractor is liable) in connection with any loss arising from or incidental to the provision of the Works.

12.2.  The aforementioned indemnity includes, but is not limited to, any legal costs incurred by the Contractor in meeting any such claim, demand or action for which the Contractor is liable.

12.3.  This clause remains in force after the termination of this Agreement.

13.    Title

13.1.  It is the intention of the parties that ownership of any Materials shall not pass until:

13.1.1. The Customer has paid all amounts owing for the particular Materials; and

13.1.2. The Customer has met all other obligations due by the Customer to the Contract in respect of all contracts between the Customer and the Contractor.

13.2.  The Contractor’s liability under this Agreement (and this clause cl 10.1.3 in particular) may be limited if Contractor’s failure relates solely to a design or specification prepared by or on behalf of the Customer or any such design or specification required by the Customer which the Contractor has advised the Customer in writing would go against cl 10.1.3.

13.3.  For the purposes of this clause, receipt by the Contractor 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 the Contractor’s ownership or rights in respect of Materials will continue.

13.4.  If the Contract retains ownership of the Materials nonetheless, all risk for the Materials pass to the Customer on delivery of those materials to the Customer’s premises.

13.5.  Until title to any Materials pass to the Customer:

13.5.1. The Customer will hold the materials solely as bailee for the Contractor and the Customer will store the goods separately from its own goods and materials and those of other persons and in such a manner as will clearly identify the materials as the property of the Contractor.

13.5.2. The Customer agrees not to cut, alter, affix or install any materials until title has passed to the Customer.

13.5.3. The Contractor retains its rights as an unpaid Contractor in respect of the goods.

13.5.4. If the Customer fails to pay for the materials in accordance with this Agreement then the Contractor may repossess the materials and the Customer irrevocably authorises and licenses the Contractor to enter its premises or any other premises where the goods are stored at any time without notice and without liability for trespass or damage in order to inspect and/or remove the materials.

14.    Insurance

14.1.  Pursuant to the Home Building Act 1989 (NSW), the Contractor will disclose any applicable cost of home building compensation insurance or cover relating to this Agreement.

15.    Security & Charge

15.1.  In consideration of the Contractor agreeing to perform the Works, the Customer agrees to charge all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

15.2.  The Contractor shall have the right to lodge a caveat over any real property to secure the charge referred to in 14.1 above and the Customer consents to grant a caveatable interest by way of an equitable charge to protect and secure the payment of all monies owing to the Contractors.

15.3.  Upon entering into this Agreement in writing the Customer acknowledges and agrees that these terms and conditions constitute a security interest in all materials supplied by the Contractor to the client (if any) pursuant to the Personal Property Securities Act 2009 and the Customer undertakes to sign any documents and/or provide any further information the Contractor may reasonable require to register, correct or amend any statement in relation to that security interest.

16.    Safety

16.1.  The Customer warrants that the Customer is authorised to occupy the premises at which the Works are to be undertaken.

16.2.  The Customer will ensure that the premises at which the Works are to be undertaken is safe and that all facilities provided by the Customer in order for the contract to do the Works is also safe.

16.3.  The Customer will ensure that the Contractor has unobstructed access to the premises at which the Works are to be undertaken.

16.4.  The Contractor will ensure that in performing the Works it uses appropriate and safe procedures and that all employees used by the Contractor are properly supervised and trained in relevant safety practices. Where protective materials, equipment and clothing are required, these will be supplied by the Contractor and will ensure that these are used correctly and at relevant times.

16.5.  The Contractor will at all times have current Workers Compensation Insurance and will, on request with prior notice, supply evidence to the Customer of the Insurance Policy Currency.

17.    Termination

17.1.  This Agreement may be terminated in the circumstances provided by the general law, and this does not prevent the parties agreeing to additional circumstances in which the Agreement may be terminated.

17.2.  To the extent permitted by law, the Customer may only terminate this Agreement with the written consent of the Contractor and on terms that the Customer will indemnify the Contractor against all losses as a result of that termination. If the Contractor accepts the Customer’s termination, the Customer will be liable for any deposit paid in relation to the Contract Price, plus the cost of any Materials the Contractor has already ordered, and any restocking fees incurred by the Contractor, administration costs, planning expenses and any other disbursements.

17.3.  If the Agreement is ended under this clause, the Contractor shall at all times be entitled to a reasonable price for the Works carried out under this Agreement to the date the Contract is ended (including the cost of any Materials delivered to the worksite or already order from supplies but not yet paid by the Customer).

18.    General Terms

18.1.  Any quote to do the Works is only valid for 7 days

18.2.  If any part of this Agreement is invalid, void, illegal or unenforceable the validity, existence legality and enforceability of the remaining provisions shall not be prejudiced or impaired.

18.3.  The Agreement contains the entire Agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous Agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof.

18.4.  These terms will be governed by and construed pursuant to the laws of New South Wales.

18.5.  In the event of any breach of this contract by the Contractor, the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Contractor exceed the Contract Price of the Works.

18.6.  Unless otherwise provided in writing the Customer shall not be entitled to set off against or deduct from the Contract Price any sums owed or claimed to be owed to the Customer by the Contractor.

18.7.  Neither the Contractor nor the Customer shall be liable for any breach of these terms where the breach arises from an act of God, war, natural disaster, terrorism or any other event beyond the reasonable control of the parties.

18.8.  The Contractor may amend the terms of this Agreement by:

18.8.1. Giving the Customer notice in writing, including a copy of the amended terms; or

18.8.2. Notifying the Customer that amended terms are available for review on the Suppliers Website.

18.9.  In either case, the amended terms will apply to this Agreement mutatis mutandum on and from the expiration of 30 days after the notice is given.