1. DEFINITIONS
Applicant refers to the person or persons applying for an account or credit with BPW.
BPW means SEQ Logistics Pty Ltd t/as Brisbane Pressure Washing (A.B.N. 53 626 431 329) and its servants, contractors and agents.
Business Day means any Monday to Friday in which trading banks are open in Queensland but not a Public Holiday.
Cleaning Proposal means the BPW proposal provided in hard copy, electronic or email form, identifying the scope of work and associated costs for the Services. The Engagement Letter may follow the Cleaning Proposal or it may be one and the same document.
Client means the person/entity ordering the Services and includes or any person/entity acting with the Client’s authority whether apparent or actual. Ordinarily the Client will be identified in the Engagement Letter and/or Client Proposal as engaging BPW’s services.
Client’s Covenants means the obligations of the Client pursuant to these Conditions.
Consequential Loss includes all indirect loss of any kind, including without limitation, loss of profit, loss of opportunity, loss of goodwill, loss of contract, loss of reputation, and loss of the use of money.
Engagement Letter means the BPW proposal provided in hard copy, electronic or email form, identifying the scope of work and associated costs for the Services. The Engagement Letter may follow the Cleaning Proposal or it may be one and the same document.
Guarantor means a person or persons who give written notice that they are guaranteeing the Client’s Covenants.
Interest Rate means the Reserve Bank of Australia Cash Rate plus 10 % calculated daily and compounded monthly.
Money Hereby Secured means the aggregate or, any part of the money owing by the Client under these Conditions.
Occupier means an occupier, tenant, lessee, licensee, owner of the Site or any part of it.
Payment means paid in cleared funds.
PPSA is reference to the Personal Property Securities Act 2009 (Cth) and PPSR is a reference to the register established and maintained pursuant to that Act.
Product and Products means the plant, equipment, goods and/or services, including provision of labour, supplied or to be supplied by BPW pursuant to this Agreement and includes chemicals, raw materials and other components.
property means all present and after acquired property.
Services means the services as set out in the Engagement Letter or detailed in an Annexure to this document or as agreed in writing from time to time.
Site means the proposed location or locations for the Services to be provided.
2. INTERPRETATION
(a) In these conditions unless the context otherwise requires: (i) the singular includes the plural and vice versa; (ii) the use of one gender includes all genders; (iii) representations, obligations or warranties, by more than one person will include those persons jointly and severally; (iv) a reference to a party includes their successors or assigns; (v) a reference toa person includes a company and a trust means the trustee of that trust(vi) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.
(b) References to these Conditions refers to this document and such additional conditions as incorporated by this document or a quotation, Engagement Letter or Cleaning Proposal, the schedules and annexures to it (eg Preparation Requirements), the definitions and interpretation and all are operative parts.
(c) Unless the context other requires words and phrases defined in the PPSA shall have the same meaning here.
3. QUOTES, ENGAGEMENT AND ORDERS
(a) General. Each work package will take the form of a defined scope of works and agreed schedule and estimate of costs as agreed between the Parties and recorded in writing. The Engagement Letter and scope of works may be in the form of email exchange evidencing the Parties agreement.
(b) Quotations. All quotations issued by BPW to a Client are subject to these general Conditions as all work orders placed by the Client. Quotations will be open for acceptance for the period stated in the quotation and if no period is stated then for 1 month.
(c) Variation to quoted prices. BPW reserves the right to change the Price: (i) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or, (ii) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including poor weather conditions, limitations to accessing the Site, working at night time and/or in poor visibility, availability of equipment, safety considerations, prerequisite work by any 3rd party not being completed, obscured building defects, structural issues, change of design etc) which are only discovered on commencement of the Services; or, (iii) subject to locked in quotations or paragraph 4(b) in regard to standing pricing schedules, in the event of increases to BPW in the cost of labour or chemicals which are beyond BPW’s control.
(d) Order of Precedence. The documents making up this Agreement shall prevail over inconsistent provisions with the others in the following order with the earlier listed documents being the superior document: (i) The later in time of the Engagement Letter and the Cleaning Proposal; and, (ii) these General Conditions. Notwithstanding foregoing the parties may vary this Agreement or make temporary arrangements by express agreement evidenced in writing.
(e) Acceptance. The Client is taken to have accepted and is immediately bound by these General Conditions when the Client places the order or requests BPW to proceed with providing the Services.
(f) Further work. Where the Client instructs that further work be done then in the absence of other agreement such works will be performed in accordance with these Conditions.
(g) Authority to deal. Each party warrants that it has the power to enter into this agreement, has obtained all necessary authorisations and that it is not insolvent.
(h) Authorised representatives. Each party must appoint at least one representative who will have authority to act and give directions on its behalf in relation to this Agreement and the Services. Each party must promptly notify the other of any change in the identity of their representative and provide after hours contact details noting that typically Services are performed on nights and weekends.
(i) Client as agent or intermediary. Where a Client orders a service (or products) for the benefit of a third party, whether as agent or in any other capacity, until that 3rd party has paid for the goods or services in full, the Client will remain liable as the primary debtor for that request.
(j) The Client agrees that BPW may amend these Conditions at any time. If BPW makes a change to these terms and conditions, then that change will take effect from the date on which BPW notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for BPW to provide Services to the Client.
4. PRICING, INVOICING AND PAYMENT
(a) Unless specified otherwise, Goods and Services Tax has not been included in the contract price or prices listed in the pricing schedules and will be charged in addition to stated pricing.
(b) Retainers and pricing schedules. (i) Where BPW is essentially retained by the Client to perform Services periodically or on call or for a property portfolio, the Client agrees that any pricing schedule provided such as with the quotation or Engagement Letter may be changed or updated on 2 weeks’ notice in respect of cost of labour and 2 weeks’ notice in respect of cleaning chemicals. (ii) The statements as to payments and adjustments in a remuneration schedule (which may be a plain email or attachment to it) are operative provisions of this Agreement. (iii) BPW may require an allowance or pre-estimate of anticipated expenses to be paid in advance and where such allowance or estimate proves inadequate then subject to evidence of payment the Client, acting reasonably, must reimburse BPW.
(c) Payment terms. (i) Unless expressly agreed otherwise accounts must be settled within 7 days of presentation of the invoice. (ii) Notwithstanding paragraph (i) above, where the fees and charges are agreed to be a fixed sum then that sum shall if requested be paid to BPW prior to commencement of the Services. (iii) If the Client disputes all or a part of an invoice, fee, cost or charge the Client must pay the undisputed part and not withhold payment of the entire amount requested.
(d) Professional Fees. (i) The professional fee for the Services shall be as agreed between the BPW and the Client. (ii) Rates may be agreed to be charged to the Client on the basis of a schedule of rates based on time or the size and nature of the facility to be cleaned (eg apartments, office building, shopping centre) and its state or condition (eg unsafe roof) and the regularity of cleaning and wash down services. (iii) The amounts invoiced may be based on actual hours or weeks or months and expenses incurred. (iv) Fees may include a retainer as well as additional rates or payments for components of Services provided.
(e) Estimates. Any estimate provided in advance should not be construed as a lump-sum or fixed price quotation unless expressly specified as such. Where an estimate is likely to be exceeded for any reason, BPW will seek approval to proceed before significantly exceeding the estimate. Unless otherwise agreed, “significantly exceeding” shall mean a difference of at least twenty percent (20%).
(f) In addition to its professional fees BPW may charge: (i) A general administration charge of one percent (1%) across professional fees where external specialists are required to be engaged for example material scientists or structural engineers; (ii) At cost plus five percent (5%) for all reasonable expenses such as air fares, accommodation or special insurances, unless provided or paid directly by the Client; (iii) Interest on overdue accounts is payable at the Interest Rate.
(f) Cancelled orders. If the Client cancels an order or delays the scheduled works date then BPW shall be entitled to recoup its costs expended and for compensation and draw upon any deposit being held. In addition to covering costs of cleaning products, non-refundable mobilization costs including accommodation bookings BPW reserves the right to charge a fee of 20% of the quoted price to cover its losses and costs due to the cancellation.
(g) Suspected insolvency. BPW reserves the right to halt work, refuse supply and/or remove Product in lieu of overdue Payment or any concern with the Client’s credit worthiness.
(h) Part payments. BPW may bank any part payments of invoices, without prejudice to its rights to recover the outstanding balance of any invoice, irrespective of the Client’s intention when making that payment.
(i) Special Orders. If the Client requests Services which requires BPW to place a nonstandard order with a supplier, whether for special cleaning products or for special volumes, then BPW, may require a deposit of up to 100% of the cost of such materials paid in advance.
(j) Location / Site work / Travel. (i) BPW and its personnel may need to travel to or between locations and sites in order to perform the Services. All reasonable travel, messing costs and induction costs shall be payable by the Client. (ii) The Client will endeavour to provide reasonable notice to BPW of travel requirements and of any site specific policies or regulations. (iii) The parties acknowledge that key personnel for BPW are based in Queensland at Brisbane and the Gold Coast. Accordingly unless expressly agreed otherwise, any project requiring travel from the Brisbane or Gold Coast metropolitan areas will incur a travel cost.
5. VARIATION OF SERVICES
(a) The Client may request a variation to the Services at any time upon written notification to BPW provided that the variation in the reasonable opinion of BPW does not fundamentally alter the nature or scope of Services.
(b) Upon receipt of an instruction to vary the Services, BPW will inform the Client of the anticipated impact of that variation on the costs and scope of the Services.
(c) BPW reserves the right to amend its professional fees quoted in the Engagement Letter if reasonably required by the variation.
(d) The Client may provide to BPW such directions, instructions and information as are reasonably necessary to enable it to carry out the Services in a full and proper manner. BPW shall perform the Services in accordance with all reasonable directions given by the Client however compliance with such directions may amount to a variation in which case the above provisions of this clause shall apply. (e) Notwithstanding the foregoing where BPW follows oral directions in good faith which amount to variations the Client shall be required to pay even in the absence of written direction and agreement as to price.
6. WORKS AND PREPARATION REQUIREMENTS
(a) The general services to be provided by BPW are primarily pressure washing and similar or associated cleaning services to the external areas of buildings, shopping centres and shop fronts including walls, roofs and sealed open areas such as paved yards.
(b) Site access. The Client shall ensure that BPW has clear and free access to the Site at all times to enable BPW to undertake the Services. BPW shall not be liable for any loss or damage to the Site or property at the Site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas, Occupier’s property) unless due to BPW’s gross negligence or willful misconduct.
(c) Preparation requirements. The Client agrees it shall provide all reasonable assistance required to ensure Occupiers are prepared for BPW to attend on Site and provide the services. The standard Preparation Requirements are annexed to this document and may be supplemented, updated or modified from time to time. The Client must ensure that the Occupier is notified of the proposed cleaning times and the Preparation Requirements. BPW accepts and bears no responsibility for nil or inadequate Site preparation and any resulting damage.
(d) Delayed commencement/completion. The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that BPW claims an extension of time where completion is delayed by an event beyond BPW’s control, including but not limited to any failure by the Client: (i) to ensure that the Site is ready for the Services; or, (ii) to notify BPW that the Site is ready.
(e) Multi-story buildings. Multi-story buildings including residential apartments and commercial offices are cleaned from the top down. If an Occupier of a tenancy which is below another refuses the Services or does not have their premises ready then the premises above cannot ordinarily be cleaned. BPW takes no responsibility for this and will not reduce the quoted price. Rather there may be additional charges where an additional call out is required.
(f) Water tight. The Client must ensure that Occupiers prepare their premises in advance of the Services being provided. In particular the Client and Occupiers should ensure that their premises is sealed against the ingress of water and liquids applied at high pressure. In particular gaps under and around doors and windows should be sealed from the inside to the extent practicable and carpets covered, stock, furniture and other chattels moved away from these potential entry points.
7. BPW’S RIGHTS AND RESPONSIBILITIES
(a) BPW shall provide the Services in an efficient and timely manner in accordance with good industry practice.
(b) BPW will provide a program of works or timetable for provision of services by BPW and subcontractors acting on behalf of BPW as reasonably requested by the Client.
(c) BPW will be responsible for the payment of its employees and contractors, related taxes, superannuation and the placement of insurances in accordance with industry practice (d) BPW may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
8. CLIENT’S RIGHTS AND RESPONSIBILITIES
(a) The Client must: (i) pay for the Services and associated costs and expenses in accordance with this Agreement; (ii) retain responsibility for the use of, or reliance on, advice or recommendations supplied by BPW in the delivery of the Services; (iii) not rely on any interim, draft or oral advice unless written confirmation of that advice is requested by the Client and provided by BPW; (iv) provide BPW with such information and access to resources as may reasonably be required for the proper performance of the Services; (v) promptly inform BPW if any information which has been provided to BPW becomes, or is discovered to be, untrue, unfair, obsolete, out of date or misleading.
(b) Accuracy of information. The Client is responsible for providing accurate information and BPW is entitled to rely on the accuracy of any plans, specifications and other information provided by the Client including as to the make up or composition of signs and other materials. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate or incomplete, BPW accepts no responsibility for any loss, damages, or costs however resulting from the inaccuracy or incompleteness.
9. CREDIT
(a) BPW may at its discretion may refuse any order and may refuse to proceed with any order or engagement should the Client’s trade references or credit worthiness be unsatisfactory to it.
(b) Credit Facility. (i) The Client acknowledges that it has no right to credit or a credit facility from BPW and the granting of any credit or credit facility by BPW will be at BPW’s discretion and should credit or a credit facility be granted it will be on these general terms and conditions. (ii) All costs charges fees and duties payable in respect of any application for credit or credit facility or the provision of security will be at the sole expense of the Client. (iii) BPW may vary the terms and conditions of any credit facility from time to time, or revoke that credit facility at any time, at BPW’s discretion. Any such variation or revocation will take effect from the date such variation or revocation is communicated to the Client, in accordance with these General Conditions.
(c) Security. BPW may require guarantees from the Client’s directors or other form of security including COD terms, payment of a deposit, provision of a credit card to recover or secure any fees, losses, costs or damages. Cash deposits are not required to bear interest.
(d) Refund of cash deposits. If the Client provides a cash deposit in lieu of a card or as part security for this agreement BPW will reimburse any cash deposit by way of electronic transfer of funds to the Client’s nominated bank account within 10 Business Days to the account notified by the Client.
10. DEBIT AND CREDIT CARDS
BPW may require a credit or similar card (“Card”) as a convenient method of payment or as security for payment and if so, the following provisions shall apply.
(a) BPW may draw a security deposit prior to commencement or require the Client to reserve a sum in the account which may be drawn upon. The deposit drawn or the sum to be withheld will be specified at the time of quotation or placement of the order.
(b) Similar to paragraph (a) above, if the Client presents a Card it authorises BPW to reserve credit with, or obtain an authorisation from the Card issuer (or draw upon the Card) up to an amount equal to the expected cost of the Services or such other amount as agreed.
(c) The Client irrevocably authorises BPW to charge or draw upon the Card (or any cash deposit) to recover or secure any loss, cost or damage pursuant to this agreement. If BPW charges the Card to cover an indemnity, loss, cost or damage then BPW shall notify the Client of the amount charged and provide details of BPW’s claim. If the Client disputes any amount drawn it must respond in writing within 15 Business Days providing particulars of why it disputes the deduction.
(d) The Card may be charged within 3 months after the Services have been provided, notwithstanding that any particular charge or amount of damages could have been but was not charged when the Services were completed.
11. WARRANTY AND LIABLITY
(a) General. This warranty – (i) only covers labour costs necessary for the completed works to be placed in a standard of reasonable performance (ii) shall be covered by BPW during its normal working hours (iii) does not cover anything caused or contributed to by: misuse or neglect by the Client; work performed by anyone other than an authorised representative of BPW; inclement weather and any resultant damage, breakage, equipment failure, and such; corrosion, rust or oxidisation of metal or materials.
(b) To the extent permitted by law, all implied warranties and conditions are excluded and/or modified by these Conditions.
(c) No Consequential Loss. There must be no claims for and neither party is liable for Consequential Loss.
(d) Limitation of liability. (i) Subject to paragraph (ii)BPW’s liability and indemnities to the Client is limited to the GST exclusive amounts paid or payable to it for the provision of the Services. (ii) The limitations of liability, other than for Consequential Loss in paragraph (c) above, do not apply in relation to: liability that cannot be excluded by law; or, personal injury, illness or disability or death or damage to property of the Client, or any third party arising out of or as a consequence of the carrying out of the Services except to the extent that such liability is covered by BPW’s insurance.
(d) Discolouration or damage to surfaces. The Client agrees that BPW is not responsible to discoloration, damage or deterioration to signs, roofs, floors, walls, doors, windows and their shutters, shopfronts or surfaces generally due to chemical reaction. In addition BPW is not responsible for damage, injury or discolouration to plants or other vegetation. Unless specified otherwise by the Client, BPW will ordinarily use and apply standard cleaning chemicals in accordance with good industry practice and it remains possible that an Occupier or part of the Site has a sign or other item made out of particularly sensitive material or materials or biological make up. BPW can make no warranty as to damage or deterioration due in whole or in part to the state or quality of surfaces, surface coverings, coatings or sealants at the Site including without limitation, tiles, roof sheeting, doors, window, vents, paint, seals, screws, silicon (or similar) and their contribution to damage, discolouration or deterioration.
12. DEFAULT
(a) The Client’s outstanding Payments shall incur interest at the Interest Rate.
(b) In consideration of these conditions, in addition to any other rights and remedies of BPW hereunder the Client hereby agrees to indemnify and keep indemnified BPW from and against any loss, damage, cost, expense or claim arising from any breach or default of the Client’s Covenants including interest, debt collection costs charges or commissions and legal costs on a solicitor and own client basis except to the extent that such loss, cost or damage was caused by the fault of BPW or its employees or contractor’s.
(c) The Client (and Guarantor if there is a guarantor) hereby charge their property as security for the Money Hereby Secured. BPW may register notification of this security on the PPSR without being required to provide a verification statement (s157 PPSA) to the Client or Guarantor.
(d) Nothing herein contained shall affect or become merged with any other security which BPW now or may hereafter hold in respect of the Money Hereby Secured or any claim or demand which BPW now has or may hereafter have against any other person or surety or otherwise. This security will: (i) be a continuing security until a final discharge has been given to the Client; and, (ii) not merge with any judgment which BPW may obtain.
(e) On default in Payment or in the observance or performance of any of the Client’s Covenants all BPW’s powers may be exercised by it without notice and without proof of the default or its continuance including the right of suspension of works and/or immediate termination.
(f) Where Payment is overdue, BPW is authorised to enter onto any premises for the purpose of decommissioning or reclaiming possession of any products supplied by BPW.
13. GUARANTEE (IF APPLICABLE)
Where a party has agreed to guarantee the Client’s Covenants the following provisions shall apply.
(a) (i) In consideration of BPW agreeing to provide Services to the Client, the Guarantor guarantees to BPW the Payment by the Client of all moneys which are now or may from time to time hereafter be owing by the Client to BPW and the due performance of the Client’s Covenants. (ii) The Guarantor indemnifies BPW from any breach of the Client’s Covenants. (iii) The Guarantor hereby acknowledges that prior to the execution of these Conditions the Guarantor has obtained legal and financial advice or declined the opportunity to do so.
(b) The Guarantor’s obligations under this Guarantee will be principal obligations co-extensive with those of the Client.
(c) This Guarantee is a continuing guarantee for the Money Hereby Secured and will not be prejudiced, abrogated or affected by: (i) BPW providing any indulgence or concession to the Client or any Guarantor or by any variation in the terms upon which BPW provides the Services or makes credit available to the Client or by BPW waiving any breach or default by the Client. (ii) any payment made to BPW which is thereafter avoided whether by statute as a preference or voidable transaction or for any other reason whatsoever and any said payment will not operate to discharge the Guarantor’s liability under this Guarantee and in that event BPW, the Client and the Guarantor are to be restored to the rights which each respectively would have had if the payment had not been made; (iii) any absolute or partial release of or compromise with the Client or any Guarantor; (iv) any variation of the provisions of these conditions; (v) any assignment of these conditions or the contract of supply; (vii) any release, failure to sue, agreement not to sue, any exchange, variation, renewal or modification made or any other act or omission by BPW (viii) any act, omission or default on the part of BPW or the happening of any other thing whereby the liability of the Guarantor would, but for this clause, have been discharged, reduced or any other present or future legal disability of the Client or the Guarantor – and each of the above circumstances is to be construed separately and independently and so as not to limit the meaning of any other listed circumstances and is not to be limited by the provisions of any other clause in these conditions.
(d) BPW is not required or obliged to give any notice to: the Guarantor of a default by the Client or any other Guarantor; or, give any notice to or obtain any consent from the Guarantor before the obligations and liabilities of the Client are varied or increased.
(e) This Guarantee will not be affected by the death, disability, mental incapacity, bankruptcy, liquidation, insolvency, deed of arrangement, assignment or composition for the benefit of creditors, capital reconstruction or the appointment of a receiver and/or manager or administrator of the Client or of any Guarantor or the property of any such party or notice of any of the preceding circumstances
14. MISCELLANEOUS
(a) If any provision of these conditions is found to be legally ineffective only that particular provision or part so found and not the entire agreement shall be inoperative. Where the provision is severed the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as originally contemplated to the fullest extent possible.
(b) Any person who signs these conditions on behalf of the Client warrants that it has the power to bind the Client.
(c) This agreement may consist of a number of counterparts which may be exchanged in any way authorized by law including by fax or email.
(d) BPW’s consents or waivers or agreed contract variations must be evidenced in writing. These General Conditions shall prevail to the extent of any inconsistency with any other document or agreement between the parties and in particular any terms and conditions the Client may seek to impose on an order notwithstanding that the Client purports to place an order attaching its own additional or substitute conditions.
(e) Notices must be written in english and signed by an authorised person. Notices received after 4pm or on a non Business Day, will be deemed received at 9am on the next Business Day. Notices and formal communications may be sent by email in which case a signature is not necessary provided the identity of the sender is clear.
(f) The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by BPW nor to withhold payment of any invoice because part of that invoice is in dispute.
(g) Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, epidemic or other event beyond the reasonable control of either party.
