TErms of trade

1. Interpretation and Construction

1.1 Definitions

In these Terms of Trade, unless the context requires otherwise, the following words have the following meanings:

Client means any person, organisation, or other entity that has requested the supply of Services from TBC as stated on any order, invoice or document;

IDAS means an Integrated Development Assessment System Intellectual Property means all processes, procedures, methodologies, techniques and/or inventions whether registered trademarks, designs, patents or not registered;

Order means any order made by the Client from TBC for the supply of Services;

Quotation means any quotation issued by TBC to the Client for the supply of Services;

Price means the price payable for the supply of Services in accordance with clause 4;

Services means any services to be rendered by TBC to the Client, at the Client’s request;

TBC means The Trustee for the Morley Trading Trust t/as Total Building Consult ABN 61 328 841 831and

Terms means these Terms of Trade which apply to any supply of Services by TBC to the Client.  

1.2 Construction

(a) a reference to these Terms or another agreement between the parties includes any variation or replacement;

(b) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(c) the singular includes the plural and vice versa;

(d) the masculine includes the feminine and neuter and vice versa;

(e) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes, employees, agents and permitted assigns;

(f) an obligation, agreement, representation or warranty on the part of or in favour of two or more persons binds, and/or is for the benefit of them jointly and severally;

(g) a reference to anything is a reference to the whole or any part of it; and

(h) references to parties or clauses are, unless otherwise stated, references to the parties and clauses contained in these Terms. 

2. Supply of Services

2.1 TBC may issue a Quotation upon the Client’s request or otherwise accept an Order for the supply of Services from the Client.

2.2 Any Quotation issued by TBC remains open for acceptance from the time stated on the Quotation or otherwise for seven (7) days unless withdrawn earlier. All Quotations are estimates only and are subject to withdrawal, correction or alteration at any time prior to TBC’s acceptance of the Client's request. All amounts and prices stated on the Quotation are as at the date of the Quotation.

2.3 TBC may specify a minimum order value and impose a surcharge if an Order is for a value of less than the minimum order value.

2.4 An Order shall identify the Services ordered and the quantity required and refer to any Quotation pursuant to which the Order is made.

2.5 TBC may cancel or terminate any Order at any time without cause, in TBC’s absolute discretion and in that event, TBC shall repay the Client any money paid by the Client and TBC is not liable for any loss or damages in any respect arising from any cancellation.

2.6 TBC reserves the right, whether or not an Order has been accepted and without notice to the Client to withhold supply to the Client and will not be liable for loss or damage resulting directly or indirectly from such action, including if the services cannot be rendered for any reason whatsoever, if the Client is in default of these Terms or if TBC has determined in its absolute discretion that credit should no longer be extended to the Client.

2.7 If the Client cancels and Order, the Client remains liable and shall indemnify and keep indemnified TBC for any and all loss is suffered (whether direct or indirect) by TBC as a direct result of the cancellation (including but not limited to loss of profits).

2.8 In the event of termination of the Order, the Client must comply with s.144 of the Building Act 1975 (Qld).

3. Acceptance

3.1 The Client warrants that it has the power to enter into this agreement, is solvent and able to pay its debts as and when they fall due, and this agreement creates a binding and legal obligation and all information provided to TBC by the Client is true and correct in all material respects.

3.2 The Client acknowledges that building approvals will be received electronically and agree to accept electronic signature and endorsements on certified documents.

3.3 The Client acknowledges these Terms apply to any Quotation or Order or other supply of Services and the Client accepts the Terms without amendment and agrees to be bound by them.

3.4 The Client agrees that the Terms apply over any other document or agreement to the extent of any inconsistency.

3.5 If the Client is the trustee of a trust, then in addition to that entity the trustee agrees to bind all trusts of which the entity is a trustee from time to time.

4. Payment, Credit and Price

4.1 The Price is the price determined by TBC, in its absolute discretion, the price in accordance with the Quotation, the price on any invoices rendered by TBC or the Price as at the date of supply in accordance with TBC’s current price list.

4.2 TBC may require the Client to pay a non-refundable deposit.

4.3 Unless by prior written agreement from TBC, all fees are to be

4.4 Any additional consultation beyond the scope of the Quotation or compliance with the Deemed to Satisfy Provisions of the Building Code of Australia will be charged at a rate of $300.00 per hour in fifteen (15) minute blocks.

4.5 Unless stated otherwise, the Price is exclusive of goods and services tax (GST).

4.6 Unless stated otherwise, time for payment is of the essence and will be payable as nominated by TBC, and may be altered or revoked at any time without notice to the Client, either on or before the delivery of the Services, seven (7) days following the date of any invoice provided by TBC to the Client or otherwise as stated on the invoice.

4.7 Payment must be made by cash, cheque, electronic payment, credit card or by any other payment method nominated by TBC.

4.8 The Client acknowledges, pursuant to s.146 of the Building Act 1975 (Qld), that if it engages TBC to perform a private certification function and TBC has carried out work under these Terms, and TBC has refused to do any of the following for the work because the building assessment provisions or an applicable code under IDAS have not been complied with, or for another valid reason,

(a) approve a building development application;

(b) issue a building development approval;

(c) give a certificate of classification;

(d) certify building work

the Client must, despite the refusal, pay TBC for the Services agreed to under these Terms.

4.9 TBC may charge to the Client a fee for overdue payments or Client bank fees imposed on payments including credit card payments.

4.10 The Client acknowledges that if TBC supplies the Services on credit, then any credit provided is to be applied wholly or predominately for business purposes.

4.11 The grant of any credit facility or nomination of any credit limit is in the absolute discretion of TBC. TBC may vary, withdraw or suspend any credit facility at any time and without any liability to the Client or any other party. The Client agrees that if payment is outstanding to beyond TBC’s payment terms, the amount is immediately due and payable by the Client and the Client shall pay cash on delivery on all future Orders until any amount outstanding is paid to TBC.

4.12 For any credit facility, accounts will be submitted by TBC to the Client on a monthly basis for payment.

5. Unpaid Invoices, Interest and Costs

5.1 If invoices or monies outstanding are not paid in full by the due date for payment, TBC may charge the Client interest on the unpaid amount to be accrued daily from the date when payment becomes due until the date of payment at the rate of 20% per annum.

5.2 The Client is not entitled to set off, deduct or otherwise withhold payment of any amount due and owing to TBC including where the Client has disputed the invoice or alleged amounts are owed or will become owing by TBC to the Client. TBC or its appointed agents in recovering payment of any outstanding invoice or in enforcing its rights under these Terms, including, but not limited to, legal costs determined on a solicitor/own client basis, mercantile agents’ costs or commission and bank dishonour fees.

5.3 The Client is liable for all costs and disbursements incurred by paid by the Client before any application is processed.

5.4 TBC is entitled to retain any goods or other documents held on the Client’s behalf pending payment of any outstanding monies by the Client.

6. Warranties

6.1 To the extent permitted by law, TBC does not provide any warranty in the Services.

6.2 TBC expressly denies and excludes any warranties or conditions which would otherwise be implied to the maximum extent possible by law including but not limited to merchantable quality, suitability, fitness of purpose, quality, suitability, or otherwise. TBC acknowledges that these Terms do not exclude any statutory warranties which may be implied pursuant to the Competition and Consumer Act 2010 (Cth). 6.3 The Client acknowledges and agrees that:

(a) the Client shall rely on its own knowledge and expertise with respect of the purpose of the goods and any advice or assistance given by or on behalf of TBC shall be accepted at the Client’s risk and shall not be deemed to have been given as an expert or adviser or be otherwise relied on by the Client; and

(b) TBC shall not be liable nor responsible for any failure to comply with any requirements of the Client or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particulars provided with respect to the intended use of any goods or otherwise) which are not precisely and accurately communicated in writing to TBC prior to agreement for supply of Services.

7. Release and Indemnity

The Client hereby releases and indemnifies and agrees to keep TBC indemnified from any and all costs, damages, liabilities, expenses or losses including indirect, consequential losses (including but not limited to loss of profit), that TBC may incur in relation to the Client or any third party, where the cost, damage, liability, expense or loss is caused by or contributed to by the services performed, any defect or fault in workmanship or design or their use, a breach of these Terms or for any other reason whatsoever.  

8. Limitation of Liability

8.1 The Client agrees, to the fullest extent possible by law, in relation to any cost, damage, liability, expense or loss (including those contributed or cause by TBC’s negligence or breach of any condition or warranty), if the Client is not a consumer pursuant to the Competition and Consumer Act 2010 (Cth), to limit any claim made to TBC, in TBC’s absolute discretion to: the value of any express warranty provided by TBC to the Client or any warranty to which the Client is entitled; replacement of the Services and/or the supply of equivalent services; or repay the purchase price in the event that then payment has been received from the Client. In no circumstances shall TBC be liable for any amount in excess of the Price.

8.2 If TBC is required to remedy the services pursuant to the parties. The Client acknowledges that invoices issued by TBC Competition and Consumer Act 2010 (Cth) but cannot do so for any reason whatsoever, TBC may refund the Price, if the Price has been paid by the Client.

8.3 TBC shall not be liable for any damages for personal injury or death, any damage to property and/or any contingent, consequential, direct, indirect, special or punitive damages whether due to negligent act or omission of TBC or its employees or agents or otherwise and the Client acknowledges this limitation of liability and agrees to limit any claim accordingly.

8.4 No other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any extending to, otherwise relating to or binding upon TBC other than these Terms is made or given by or on behalf of the TBC.

8.5 Notwithstanding anything in this clause 8, a Client shall not be entitled to make any claim upon the TBC whatsoever if any amounts are outstanding from the Client to the TBC.

9. Intellectual Property Rights

9.1 The Client acknowledges and agrees that it does not have any intellectual property rights in the Services and that all rights that TBC holds in the intellectual property associated with the Services supplied and has the right to use the intellectual property in the Services including where TBC has developed or designed the Services for the Client, remain the property of TBC.

9.2 The Client acknowledges that all designs or other specifications provided by it with respect to the Services will not cause TBC to infringe any intellectual property right in provision of the Services and the Client indemnifies TBC against any action taken by a third party against TBC with respect to any infringement relating to such design or specifications.

10. Security

10.1 In order to secure the performance by the Client of its obligations, the Client, and where the Client is unincorporated each proprietor of the Client, hereby charges with payment of the moneys and compliance with all obligations owed by the Client to TBC all beneficial interests (freehold and leasehold) in real and personal property held now or in the future by the Client or proprietor.

10.2 The Client, and where applicable, each proprietor agrees that if demand is made upon it, him or her by TBC, the Client or, if applicable, that proprietor will immediately execute a consent to caveat, or a caveat or mortgage, as required by TBC to secure the obligations pursuant to this clause 10. The Client or, if applicable, each proprietor, irrevocably and by way of security appoints TBC and any director, credit manager or solicitor engaged by TBC to be its, his or her true and lawful attorney to give effect to this clause 10 including but not limited to execute and register all documents.

10.3 The Client indemnifies TBC in relation to all of its costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the TBC’s right pursuant to this clause 10.

11. Privacy and Credit Information

11.1 TBC is required to collect local council and / or state government statutory fees, charges, and levies. TBC collects such statutory fees, charges, and levies as an agent for the Client for those are to account for these matters as disbursements collected on behalf of the relevant party.

11.2 The Client irrevocably authorises TBC to make enquiries, exchange, collect and use a Client’s personal information including credit information and information relating to property, business or other solvency matter from time to time as TBC may deem necessary which may include enquiries with persons nominated as trade references, financiers, any other credit provider, credit reporting bodies, any government department and/or any similar or other organisation (Information Provider) for the following purposes:

(a) obtaining information on the credit position of the Client;

(b) investigating the credit worthiness of the Client in relation to the credit to be provided by TBC; marketing purposes (unless the Client has notified TBC it wishes to opt out of direct marketing);

(c) to allow TBC to provide a credit facility for the supply of Services to the Client; to notify the credit provider of a default by the Client;

(d) and to a credit reporting body to obtain a credit report or to permit a credit reporting body to maintain or update the Client’s credit file.

11.3 The Client acknowledges that the information exchanged under clause 11.2 may include any information in relation to the Client’s creditworthiness or credit history.

11.4 The Client consent and irrevocably authorises the Information Provider to disclose any information about the Client in their possession to TBC; TBC may use any information which it holds for the purposes listed in clause 11.2; and may disclose any of the Clients’ personal information to any interested person (including overseas third parties) for any purpose listed in clause 13.2, to the extent permitted by the Privacy Act 1988 (Cth) and the Australian National Privacy Principles (if applicable).

11.5 To the maximum extent permitted by law, the Client agrees (unless the Client otherwise withdraws consent), to waive all rights under the Privacy Act 1988 (Cth).

 12. Default

12.1 Without prejudice to any other remedies available to TBC, if the Client becomes insolvent or appoints an administrator, receiver, receiver and manager, liquidator or trustee in bankruptcy or is in breach of any these Terms (including any term for payment), all

monies become immediately due and owing to TBC and TBC may immediately:

(a) terminate or suspend supply of Services;

(b) retain all monies paid a;

(c) cease all future deliveries;

(d) cancel all or any part of any order unfilled; and/or

(e) recover from the Client any loss of profits arising from the Client’s default.

12.2 If TBC exercises its rights pursuant to clause 12.1, it is not liable to the Client for any consequential loss or damages suffered by the Client.

13. Client Restructure

13.1 The Client shall provide written notice to TBC of any change to its structure or management including change of director, shareholder, partnership, trusteeship or management or its details (including changes to its name or address). If the Client agreement. This agreement may be executed and delivered by fails to comply then the Client agrees to indemnify TBC from any resulting loss.

14. Miscellaneous

14.1 Force Majeure. TBC shall not be or be deemed to be in default or breach of any agreement as a result of force majeure. Force Majeure shall include national emergency, war, prohibitive government regulations or any cause beyond the reasonable control of TBC including trade disputes which means that the Services cannot or are delayed in being provided by TBC to the Client.

14.2 Notices. A notice, demand, waiver, approval or other document given pursuant to these Terms must be in writing and may be given to the recipient by way of personal service, prepaid post, facsimile transmission or email transmission at the address of the party as provided from time to time.

14.3 Severance. If any provision or part of a provision of these Terms cannot be given effect or is declared void for any reason, the provision or part which cannot be given effect shall be severed and the remaining provisions shall remain valid, binding and enforceable on the parties.

14.4 Waiver. No rights under these Terms will be waived unless agreed in writing and signed by TBC. TBC does not waive a right if an extension or other forbearance is given to the Client. No waiver of a provision of these Terms shall be construed as a continuing waiver of the provision. A waiver by TBC of any matter does not prejudice its rights in respect of any matter. Any non- exercise or partial exercise of or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.

14.5 Variation. All Services provided by TBC are provided on these Terms, as amended from time to time by TBC in its absolute discretion or otherwise agreed by TBC in writing. The Client

agrees it is deemed to have notice of change to these terms and be bound by such variations as they appear on TBC’s website from time to time, whether or not the Client has actual notice of any such variation.

14.6 Assignment. The Client is not entitled to assign the benefits or obligations under this agreement to any entity without TBC’s prior written consent, which may be given in TBC’s absolute discretion. TBC may assign all or any part of the benefits and obligations under this agreement without the requirement for the Client’s consent.

14.7 Jurisdiction. The provisions of these Terms and any agreement for services between TBC and the Client shall be governed by the laws of the state of Queensland each party irrevocably submits to the non-exclusive jurisdiction of the courts of the said state.

14.8 Entire Agreement. These Terms supersede all previous agreements, discussions and representations between TBC and the Client and constitute the entire agreement in relation to the agreement for provision of Services between TBC and the Client. All prior correspondence, negotiations or representations do not bind either party and either party is not entitled to rely upon them.

14.9 Counterparts. This agreement may be signed in any number of counterparts and each counterpart shall together constitute one facsimile, electronically or by way of electronic signature and the receiving party may rely upon same as if it was an original document or signature.

15. Special Conditions

15.1 It is the Client’s responsibility to ensure all compliance with the Planning Scheme and Covenant design issues not specified in the Building Act 1975 (Qld) or the Building Code of Australia.

15.2 In the event building work differs from the Approved Documentation, the Client will be required to submit amended plans, highlighting the changes in red, dated the day of change, and a new job reference assigned to the plans (by way of example only, Revision B)

15.3 Claims in relation to payments made under these Terms are made under both the Building & Construction Industry Payment Act 2004 (Qld) and the Building Act 1975 (Qld).

Last update: 13th September 2019