1.1 "Consultant" shall mean Grummitt Planning Pty Ltd ATF Grummitt
Planning Discretionary Trust and its successors and assigns.
1.2 "Client" shall mean the Client or any person acting on behalf of and
with the authority of the Client.
1.3 "Guarantor" means that person (or persons), or entity who agrees
herein to be liable for the debts of the Client on a principal debtor basis.
1.4 "Services" shall mean all services supplied by the Consultant to the
Client and includes any advice or recommendations.
1.5 "Price" shall mean the cost of the Services as agreed between the
Consultant and the Client subject to clause 4 of this contract.
2.1 Any instructions received by the Consultant from the Client for the
supply of Services and/or the Client's acceptance of Services supplied
by the Consultant shall constitute acceptance of the terms and
conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the
Client's shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms
and conditions are irrevocable and can only be rescinded in
accordance with these terms and conditions or with the written consent
of the manager of the Consultant.
2.4 None of the Consultant's agents or representatives are authorised to
make any representations, statements, conditions or agreements not
expressed by the manager of the Consultant in writing nor is the
Consultant bound by any such unauthorised statements.
2.5 The Client undertakes to give the Consultant not less than fourteen (14)
days prior written notice of any proposed change in the Client's name
and/or any other change in the Client's details (including but not limited
to, changes in the Client's address, facsimile number, or business
3.1. The Services are as described on the invoices, quotation, work
authorisation or any other work commencement forms as provided by
the Consultant to the Client.
4. Price And Payment
4.1 At the Consultant's sole discretion;
(a) The Price shall be as indicated on invoices provided by the
Consultant to the Client in respect of Services supplied; or
(b) The Price shall be as indicated on the fee submission
provided by the Consultant to the Client in respect of
Services supplied; or
(c) The Price shall be the Consultant's current Price, at the date
of delivery of the Services, according to the Consultant's
current Price list; or
(d) The Price of the Services shall (subject to clause 4.2) be the
Consultant's quoted Price which shall be binding upon the
Consultant provided that the Client shall accept in writing the
Consultant's quotation within thirty (30) days.
4.2 Time for payment for the Services shall be of the essence and
will be stated on the invoice, quotation or any other order forms. If
no time is stated then payment shall be on completion of the
4.3 At the Consultants sole discretion, for certain approved Clients
payment will be due fourteen (14) days following the date of the
4.4 At the Consultant's sole discretion, payment for approved Clients shall
be made by instalments in accordance with the Consultant's
4.5 Payment will be made by cash on delivery, or by cheque, or by bank
cheque, or by direct credit, or by any other method as agreed to
between the Client and the Consultant.
4.6 The Price shall be increased by the amount of any GST and other
taxes and duties which may be applicable, except to the extent that
such taxes are expressly included in any quotation given by the
4.7 Late Payment – A late payment fee of 0.5% of total amount invoiced
will be applied per month for outstanding accounts and automatically
added to the amount after the due date of (14) days following the date
of the invoice..
5. Delivery Of Services
5.1 Delivery of the Services (or copies thereof) shall be made to the
Client's address. The Client shall make all arrangements necessary to
take delivery of the Services whenever they are tendered for delivery.
5.2 Delivery of the Services to a third party nominated by the Client is
deemed to be delivery to the Client for the purposes of this agreement.
5.3 The failure of the Consultant to deliver shall not entitle either party to
treat this contract as repudiated.
5.4 The Consultant shall not be liable for any loss or damage whatever due
to failure by the Consultant to deliver the Services (or any of them)
promptly or at all.
6.1 If the Consultant retains property in the Services nonetheless, all risk
for the Services passes to the Client on delivery.
7. Errors and Omissions
7.1 The Client shall inspect the Services on delivery and shall within seven
(7) days of delivery notify the Consultant of any alleged defect, error,
omission or failure to comply with the description or quote. The Client
shall afford the Consultant an opportunity to inspect the Services within
a reasonable time following delivery if the Client believes the Services
are defective in any way. If the Client shall fail to comply with these
provisions, the Services shall be conclusively presumed to be in
accordance with the terms and conditions and free from any defect or
7.2 For defective Services, which the Consultant has agreed in writing that
the Client is entitled to reject, the Consultant's liability is limited to either
(at the Consultant's discretion) replacing the Services or repairing the
Services provided that the Client has complied with the provisions of
8. Client's Disclaimer
8.1 The Client hereby disclaims any right to rescind, or cancel the contract
or to sue for damages or to claim restitution arising out of any
misrepresentation made to him by any servant or agent of the
Consultant and the Client acknowledges that he buys the Services
relying solely upon his own skill and judgement.
9. The Commonwealth Trade Practices Act 1974 and Fair Trading
9.1 Nothing in this agreement is intended to have the affect of contracting
out of any applicable provisions of the Commonwealth Trade Practices
Act 1974 or the Fair Trading Acts in each of the States and Territories
of Australia, except to the extent permitted by those Acts where
10. Intellectual Property
10.1 Where the Consultant has designed or drawn Services for the Client,
then the copyright in those designs and drawings shall remain vested in
the Consultant, and shall only be used by the Client at the Consultant's
10.2 Conversely, in such a situation, where the Client has supplied
drawings, the Consultant in its sale conditions may look for an
indemnity (the specifications and design of the Services (including the
copyright, design right or other intellectual property in them) shall as
between the parties be the property of the Consultant).
10.3 Where any designs or specifications have been supplied by the Client
for manufacture, by or to the order of the Consultant then the Client
warrants that the use of those designs or specifications for the
manufacture, processing, assembly or supply of the Services shall not
infringe the rights of any third party.
11. Default & Consequences Of Default
11.1 Interest on overdue invoices shall accrue from the date when payment
becomes due daily until the date of payment at a rate of 2.5% per
calendar month and shall accrue at such a rate after as well as before
11.2 If the Client defaults in payment of any invoice when due, the Client
shall indemnify the Consultant from and against all the Consultant's
costs and disbursements including on a solicitor and own client basis
and in addition all of the Consultant's nominees
costs of collection.
11.3 Without prejudice to any other remedies the Consultant may have, if at
any time the Client is in breach of any obligation (including those
relating to payment), the Consultant may suspend or terminate the
supply of Services to the Client and any of its other obligations under
the terms and conditions. The Consultant will not be liable to the Client
for any loss or damage the Client suffers because the Consultant
exercised its rights under this clause.
11.4 If any account remains unpaid at the end of the second month after
supply of the Services an immediate amount of the greater of $20.00 or
10.00% of the amount overdue shall be levied for administration fees
which sum shall become immediately due and payable.
11.5 In the event that:
(a) any money payable to the Consultant becomes overdue, or in the
Consultant's opinion the Client will be unable to meet its payments
as they fall due; or
(b) the Client 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 Client or any asset of the
Client; then without prejudice to the Consultant's other remedies at
(i) the Consultant shall be entitled to cancel all or any part of any
order of the Client which remains unperformed in addition to
and without prejudice to any other remedies; and
(ii) all amounts owing to the Consultant shall, whether or not due
for payment, immediately become payable.
12.1 It is the intention of the Consultant and agreed by the Client that
property in the Services shall not pass until the Client has paid all
amounts owing for the particular Services.
12.2 It is further agreed that:
(a) Until such time as ownership of the Services shall pass from - the
Consultant to the Client the Consultant may give notice in writing to
the Client to return the Services or any of them to the Consultant.
Upon such notice the rights of the Client to obtain ownership or any
other interest in the Services shall cease.
(b) If the Client fails to return the Services to the Consultant then the
Consultant or the Consultant's agent may enter upon and into land
and premises owned, occupied or used by the Client, or any
premises as the invitee of the Client, where the Services are
situated and take possession of the Services, without being
responsible for any damage thereby caused.
(c) Receipt by the Consultant 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
Consultant's ownership of rights in respect of the Services shall
(d) The Consultant may require payment of the Price or the balance of
the Price due together with any other amounts due from the Client
to the Consultant arising out of these terms and conditions, and the
Consultant may take any lawful steps to require payment of the
amounts due and the Price.
(e) The Consultant can issue proceedings to recover the Price of the
Services sold notwithstanding that ownership of the Services may
not have passed to the Client.
13. Security And Charge
13.1 Notwithstanding anything to the contrary contained herein or any other
rights which the Consultant may have howsoever:
(a) Where the Client and/or the Guarantor (if any) is the owner of land,
realty or any other asset capable of being charged, both the Client
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 the Consultant or the Consultant's nominee to secure all
amounts and other monetary obligations payable under the terms
and conditions. The Client and/or the Guarantor acknowledge and
agree that the Consultant (or the Consultant's nominee) shall be
entitled to lodge where appropriate a caveat, which caveat shall be
released once all payments and other monetary obligations
payable hereunder have been met
(b) Should the Consultant elect to proceed in any manner in
accordance with this clause and/or its sub-clauses, the Client
and/or Guarantor shall indemnify the Consultant from and against
all the Consultant's costs and disbursements including legal costs
on a solicitor and own client basis.
(c) To give effect to the provisions of clause [13.1 (a) and (b)] inclusive
hereof the Client and/or the Guarantor (if any) do hereby
irrevocably nominate constitute and appoint the Consultant or the
Consultant's nominee as the Client's and/or Guarantor's true and
lawful attorney to execute mortgages and charges (whether
registerable or not) including such other terms and conditions as
the Consultant and/or the Consultant's nominee shall think fit in
his/her/its/their absolute discretion against the joint and/or several
interest of the Client and/or the Guarantor in any land, realty or
asset in favour of the Consultant and in the Client's and/or
Guarantor's name as may be necessary to secure the said Client's
and/or Guarantor's obligations and indebtedness to the Consultant
and further to do and perform all necessary and other acts
including instituting any necessary legal proceedings, and further to
execute all or any documents in the Consultant's absolute discretion
which may be necessary or advantageous to give effect to the
provisions of this clause.
14.1 The Consultant may cancel these terms and conditions or cancel
delivery of Services at any time before the Services are delivered by
giving written notice. The Consultant shall not be liable for any loss or
damage whatever arising from such cancellation.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s agree for the Consultant to obtain
from a credit-reporting agency a credit report containing personal credit
information about the Client and Guarantor/s in relation to credit
provided by the Consultant.
15.2 The Client and/or the Guarantor/s agree that the Consultant may
exchange information about Client and Guarantor/s with those credit
providers named in the Application for Credit account or named in a
consumer credit report issued by a reporting agency for the following
(a) To assess an application by Client:
(b) To notify other credit providers of a default by the Client:
(c) To exchange information with other credit providers as to the
status of this credit account, where the Client is in default with
other credit providers; and
(d) To assess the credit worthiness of Client and/or Guarantor/s.
15.3 The Client consents to the Consultant being given a consumer credit
report to collect overdue payment on commercial credit (Section
18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that Personal Data provided may be used and
retained by the Consultant for the following purposes and for other
purposes as shall be agreed between the Client and Consultant or
required by law from time to time:
(a) provision of Services;
(b) marketing of Services by the Consultant, its agents or distributors in
relation to the Services;
(c) analysing, verifying and/or checking the Client's credit, payment
and/or status in relation to provision of Services;
(d) processing of any payment instructions, direct debit facilities and/or
credit facilities requested by Client; and
(e) enabling the daily operation of Client's account and/or the collection
of amounts outstanding in the Client's account in relation to the
15.5 The Consultant may give, information about the Client to a credit
reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and or
(b) allow the credit reporting agency to create or maintain a credit
information file containing information about the Client.
16. Lien & Stoppage in Transit
16.1 Where the Consultant has not received or been tendered the whole of
the price, or the payment has been dishonoured, the Consultant shall
(a) a lien on the Services;
(b) the right to retain them for the price while the Consultant is in
possession of them;
(c) a right of stopping the Services in transit whether or not
delivery has been made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal, provided that the lien of the
Consultant shall continue despite the commencement of
proceedings or judgement for the price having been obtained.
17.1 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.
17.2 All Services supplied by the Consultant are subject to the laws of
Queensland and the Consultant takes no responsibility for changes in
the law which affect the Services supplied.
17.3 The Consultant shall be under no liability whatever to the Client for any
indirect loss and/or expense (including loss of profit) suffered by the
Client arising out of a breach by the Consultant of these terms and
17.4 In the event of any breach of this contract by the Consultant the
remedies of the Client shall be limited to damages. Under no
circumstances shall the liability of the Consultant exceed the Price of
17.5 The Client shall not set off against the Price amounts due from the
17.6 The Consultant may license or sub-contract all or any part of its rights
and obligations without the Client's consent.
17.7 The Consultant reserves the right to review these terms and conditions
at any time and from time to time. If, following any such review, there is
to be any change in such terms and conditions, that change will take
effect from the date on which the Consultant notifies the Client of such
17.8 Neither party shall be liable for any default due to any act of God, war,
terrorism, strike, lock out, industrial action, fire, flood, drought, storm or
other event beyond the reasonable control of either party.
Copyright – EC Credit Control Pty Ltd – 2004
Grummitt Planning Pty Ltd AFT Grummitt Planning Discretionary Trust – Terms and Conditions of Trade