Terms of Trade! Terms

TERMS OF TRADE

Definitions and interpretation

1.1 Definitions

In these Terms of Trade:

Additional Chargemeans:

fees or charges for additional work performed at the Customer's request or reasonably required as a result of the Customer's conduct, calculated in accordance with Heart & Soul Property Services’ then current prices
expenses incurred by Heart & Soul Property Services, at the Customer's request or reasonably required as a result of the Customer's conduct.

Business Daymeans a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.

Customermeans the person identified on a Quote or Order as the customer and includes the Customer's agents and permitted assigns.

Goodsmeans any goods supplied by Heart & Soul Property Services including those supplied in the course of providing Services.

Heart & Soul Property Services means the Heart & Soul Property Services Pty Ltd ABN 44 608 570 869.

Intellectual Property Rightsmeans intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.

Lossincludes, but is not limited to, costs (including, but not limited to, party to party legal costs and Heart & Soul Property Services' legal costs), expenses, lost profits, award of damages, personal injury and property damage.

Ordermeans a purchase order for Goods or Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties.

PPS Lawmeans:

the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
any amendment made at any time to any other legislation as a consequence of a PPS Law.

Quotemeans a written description of the Goods or Services to be provided, an estimate of Heart & Soul Property Services charges for the performance of the required work and an estimate of the time frame for the performance of the work.

Servicesmeans the services to be provided by Heart & Soul Property Services to the Customer in accordance with a Quote and these Terms of Trade.

1.2 Interpretation

In these Terms of Trade, unless the context otherwise requires:

a reference to writing includes email and other communication established through Heart & Soul Property Services' website (if any);
the singular includes the plural and vice versa;
a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms of Trade;
a reference to a party to these Terms of Tradeor any other document or arrangement includes that party's executors, administrators, successors and permitted assigns;
where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
headings are for ease of reference only and do not affect the meaning or interpretation of these Terms of Trade; and
if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:

if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
in all other cases, must be done on the next Business Day.
General

2.1 Engagement of Heart & Soul Property Services

These Terms of Tradeapply to all transactions between the Customer and Heart & Soul Property Services relating to the provision of Goods and Services, including all quotations, contracts and variations. These Terms of Tradetake precedence over Terms of Tradecontained in any document of the Customer or elsewhere.
The variation or waiver of a provision of these terms or a party's consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
Heart & Soul Property Services may amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.

Quotes

Heart & Soul Property Services may provide the Customer with a Quote. Any Quote issued by Heart & Soul Property Services is valid for 30 days from the date of issue.
Unless otherwise expressly agreed in writing, a Quote does not include delivery and/or installation of the Goods.
Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to Heart & Soul Property Services.
Following provision of a Quote to the Customer, Heart & Soul Property Services is not obliged to commence work until the Quote has been accepted by the Customer by completing an Order form and returning the form to Heart & Soul Property Services.
Heart & Soul Property Services reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. Heart & Soul Property Services will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these Terms of Trade.
An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon Heart & Soul Property Services.

Orders

Every Order by the Customer for the provision of Goods or Services must be submitted in writing on Heart & Soul Property Services’ standard Order form (unless otherwise agreed).
An Order will not be placed by the Customer unless the Order clearly identifies the Goods or Services ordered and Heart & Soul Property Services' Quote. Any costs incurred by Heart & Soul Property Services in reliance on incorrect or inadequate information may result in the imposition of an Additional Charge.
Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
Placement of an Order by the Customer signifies acceptance by the Customer of these Terms of Tradeand the most recent Quote.
Heart & Soul Property Services may in its absolute discretion refuse to provide Goods or Services where:

Goods are unavailable for any reason whatsoever;
credit limits cannot be agreed upon or have been exceeded; or

iii. payment for Goods or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of Heart & Soul Property Services, associated with the Customer under the same or another supply contract, has not been received by Heart & Soul Property Services.

An Order cannot be cancelled without the prior written consent of Heart & Soul Property Services. Where an Order is cancelled, the Customer indemnifies Heart & Soul Property Services against any Losses incurred by Heart & Soul Property Services as a result of the cancellation, including, but not limited to loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

Variations

The Customer may request that its Order be varied by providing a request in writing to Heart & Soul Property Services. A request for a variation must be agreed to in writing by Heart & Soul Property Services in order to have effect.
If the Customer wishes to vary its requirements after a Quote has been prepared or after the placement of an Order, Heart & Soul Property Services reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by Heart & Soul Property Services in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods and/or Services.
Heart & Soul Property Services has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.

Invoicing and payment

Heart & Soul Property Services may in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:

prior to commencing the provision of the Goods or Services, for an amount equal to the Quote and Additional Charges where Heart & Soul Property Services has not previously carried out work for the Customer or where Heart & Soul Property Services chooses to do so;
at the end of each week before the Order is completed, Heart & Soul Property Services may issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at Heart & Soul Property Services’ discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Goods or Services being provided; or

iii. upon completion of the provision of the Goods or Services or any time thereafter, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing Heart & Soul Property Services’ charge for the work performed in completing the Order and for any Additional Charges.

The amount payable in an invoice is as per the Quote and any Additional Charges.
The Customer must pay an invoice issued by Heart & Soul Property Services to Heart & Soul Property Services within 14 days of a valid tax invoice being issued to the Customer.
If any invoice is due but unpaid, Heart & Soul Property Services may withhold the provision of any further Goods or Services until overdue amounts are paid in full.
Heart & Soul Property Services may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to Heart & Soul Property Services.
The Customer is not entitled to retain any money owing to Heart & Soul Property Services notwithstanding any default or alleged default by Heart & Soul Property Services of these Terms of Trade, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the Australian Consumer Law.
The Customer is to pay Heart & Soul Property Services on demand interest at the rate of 10% per annum on all overdue amounts owed by the Customer to Heart & Soul Property Services, calculated daily.
All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of Heart & Soul Property Services, are to be paid by the Customer as a debt due and payable under the Terms of Trade.
The Customer and Heart & Soul Property Services agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.

Additional Charges

Heart & Soul Property Services may require the Customer to pay Additional Charges in respect of Costs incurred by Heart & Soul Property Services as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by Heart & Soul Property Services in order for it to provide the Goods or Services within the specified time frame (if any).
The imposition of Additional Charges may also occur as a result of cancellation by the Customer of an Order where cancellation results in Loss of Heart & Soul Property Services, storage costs for goods not collected from Heart & Soul Property Services within 2 weeks of the date on which the Goods are manufactured, fabricated, created or formed at the rate set out in the Quote, photocopying, communication costs, couriers, packing and handling, Government or council taxes or charges, additional work required by the Customer or any other occurrence which causes Heart & Soul Property Services to incur costs in respect of the Customer's Order additional to the quoted cost.

Acceptance of Goods

If the Customer fails to advise Heart & Soul Property Services in writing of any fault in Goods or failure of Goods to accord with the Customer's Order within 48 hours of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer's Order. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the Australian Consumer Law.

Title and risk
- Risk in Goods passes to the Customer immediately upon delivery.
- Property in Goods supplied to the Customer pursuant to these Terms of Tradedoes not pass to the Customer until all money (including money owing in respect of other transactions between Heart & Soul Property Services and the Customer) due and payable to Heart & Soul Property Services by the Customer have been fully paid.
- Where Goods are supplied by Heart & Soul Property Services to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by Heart & Soul Property Services in respect of those Goods, the Customer:

is a bailee of the Goods until property in them passes to the Customer;
irrevocably appoints Heart & Soul Property Services its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of Heart & Soul Property Services with respect to the Goods under applicable law;

iii. must be able upon demand by Heart & Soul Property Services to separate and identify as belonging to Heart & Soul Property Services Goods supplied by Heart & Soul Property Services from other goods which are held by the Customer;

must not allow any person to have or acquire any security interest in the Goods;
agrees that Heart & Soul Property Services may repossess the Goods if payment is not made within 14 days (or such longer time as Heart & Soul Property Services may, in its complete discretion, approve in writing) of the supply of the Goods; and
the Customer grants an irrevocable licence to Heart & Soul Property Services or its agent to enter the Customer's premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies Heart & Soul Property Services in respect of any damage to property or personal injury which occurs as a result of Heart & Soul Property Services entering the Customer's premises.

Where Goods are supplied by Heart & Soul Property Services to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by Heart & Soul Property Services in respect of those Goods, and the Customer makes a new object from the Goods, whether finished or not, or the Customer mixes the Goods with other goods or the Goods become part of other goods (New Goods), the Customer agrees with Heart & Soul Property Services that the ownership of the New Goods immediately passes to Heart & Soul Property Services. The Customer will hold the New Goods on trust for Heart & Soul Property Services until payment of all sums owing to Heart & Soul Property Services whether under these Terms of Trade or any other contract have been made and Heart & Soul Property Services may require the Customer to store the New Goods in a manner that clearly shows the ownership of Heart & Soul Property Services.
For the avoidance of doubt, under paragraph (d), the ownership of the New Goods passes to Heart & Soul Property Services at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
Notwithstanding paragraph (c) the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business provided that:

where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale less any GST on trust for Heart & Soul Property Services - in a separate account - until all amounts owned by the Customer to Heart & Soul Property Services have been paid; or
where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to Heart & Soul Property Services upon Heart & Soul Property Services giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints Heart & Soul Property Services as its attorney.

Where Goods are supplied by Heart & Soul Property Services to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by Heart & Soul Property Services in respect of those Goods, the Customer acknowledges that Heart & Soul Property Services has a right to register and perfect a personal property security interest.
If:

a PPS Law applies or commences to apply to these Terms of Trade or any transaction contemplated by them, or Heart & Soul Property Services determines (based on legal advice) that this is the case; and
in Heart & Soul Property Services' opinion, the PPS Law:
does or will adversely affect Heart & Soul Property Services' security position or obligations; or
enables or would enable Heart & Soul Property Services' security position to be improved without adversely affecting the Customer,

Heart & Soul Property Services may give notice to the Customer requiring the Customer to do anything (including amending these Terms of Tradeor execute any new Terms andConditions) that in Heart & Soul Property Services' opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph (ii)(A) or improve the security position as contemplated in paragraph (ii)(B). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in Heart & Soul Property Services’ opinion Heart & Soul Property Services' security position or obligations under or in connection with these Terms of Tradehave been or will be materially adversely affected, Heart & Soul Property Services may by further notice to the Customer cancel these Terms of Trade, in which case the Customer must pay to Heart & Soul Property Services any money owed to Heart & Soul Property Services by the Customer immediately.

Intellectual Property Rights

The Customer warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or Services or has a licence to authorise Heart & Soul Property Services to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Customer to Heart & Soul Property Services for the purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified Heart & Soul Property Services against all Losses incurred by Heart & Soul Property Services in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Customer.
Unless specifically agreed in writing between Heart & Soul Property Services and the Customer, all Intellectual Property Rights in any works created by Heart & Soul Property Services on behalf of the Customer vest in and remain the property of Heart & Soul Property Services.
Subject to payment of all invoices due in respect of the Goods or Services, Heart & Soul Property Services grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by Heart & Soul Property Services in connection with the provision of Goods or Services under these Terms of Trade for the purposes contemplated by the Order.

Agency and assignment

The Customer agrees that Heart & Soul Property Services may at any time appoint or engage an agent to perform an obligation of Heart & Soul Property Services arising out of or pursuant to these Terms of Trade.
Heart & Soul Property Services has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Terms of Trade provided that the assignee agrees to assume any duties and obligations of Heart & Soul Property Services owed to the Customer under these Terms of Trade.
The Customer is not to assign, or purport to assign, any of its obligations or rights under these Terms of Trade without the prior written consent of Heart & Soul Property Services.

Default by Customer

Each of the following occurrences constitutes an event of default:

the Customer breaches or is alleged to have breached these Terms of Trade for any reason (including, but not limited to, defaulting on any payment due under these Terms of Trade) and fails to remedy that breach within 14 days of being given notice by Heart & Soul Property Services to do so;
the Customer, being a natural person, commits an act of bankruptcy;

iii. the Customer, being a corporation, is subject to:

a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer's property and undertaking;
the entering of a scheme of arrangement (other than for the purpose of restructuring);
any assignment for the benefit of creditors;
the Customer purports to assign its rights under these Terms of Trade without Heart & Soul Property Services' prior written consent;
the Customer ceases or threatens to cease conduct of its business in the normal manner.

Where an event of default occurs, except where payment in full has been received by Heart & Soul PropertyServices, Heart & Soul Property Services may:

terminate these Terms of Trade;
terminate any or all Orders and credit arrangements (if any) with the Customer;

iii. refuse to deliver Goods or provide further Services;

pursuant to clause 9(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
retain (where applicable) all money paid on account of Goods or Services or otherwise.

In addition to any action permitted to be taken by Heart & Soul Property Services under paragraph (b), on the occurrence of an event of default all invoices will become immediately due and payable.

Termination

In addition to the express rights of termination provided in these Terms of Trade, a party may terminate these Terms of Tradeby giving 30 days written notice to the other party.

Exclusions and limitation of liability

The Customer expressly agrees that use of the Goods and Services is at the Customer's risk. To the full extent allowed by law, Heart & Soul Property Services' liability for breach of any term implied into these Terms of Trade by any law is excluded.
All information, specifications and samples provided by Heart & Soul Property Services in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer's use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
Heart & Soul Property Services gives no warranty in relation to the Services provided or supplied. Under no circumstances is Heart & Soul Property Services or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:

any Goods or Services supplied to the Customer;
any delay in supply of the Goods or Services; or

iii. any failure to supply the Goods or Services.

Any advice, recommendation, information, assistance or service given by Heart & Soul Property Services in relation to Goods and/or Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. Heart & Soul Property Services does not accept any liability or responsibility for any Loss suffered as a result of the Customer's reliance on such advice, recommendation, information, assistance or service.
To the fullest extent permissible at law, Heart & Soul Property Services is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on Terms of Trade, negligence, strict liability or otherwise, even if Heart & Soul Property Services has been advised of the possibility of damages.
The Customer acknowledges that the Goods or Services are not for personal, domestic or household purposes.
The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, Heart & Soul Property Services' liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.

Indemnity

The Customer indemnifies and keeps indemnified Heart & Soul Property Services, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against Heart & Soul Property Services or, for which Heart & Soul Property Services is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these Terms of Tradeincluding, but not limited to any legal costs incurred by Heart & Soul Property Services in relation to meeting any claim or demand or any party/party legal casts for which Heart & Soul Property Services is liable in connection with any such claim or demand. This provision remains in force after the termination of these Terms ofTrade.

Force majeure

If circumstances beyond Heart & Soul Property Services' control prevent or hinder its provision of the Goods or Services, Heart & Soul Property Services is free from any obligation to provide the Goods or Services while those circumstances continue. Heart & Soul Property Services may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
Circumstances beyond Heart & Soul Property Services' control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

Dispute resolution

If a dispute arises between the Customer and Heart & Soul Property Services, the following procedure applies:

A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.
A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.

iii. A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.

If a dispute is notified, the dispute must immediately be referred to the parties' respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 5 Business Days (or other period as agreed).
Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives the parties expressly agree to endeavour to settle the dispute by mediation administered by the AustralianCommercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms of Trade. This paragraph survives termination of these Terms of Trade.
Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these Terms of Trade.
The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

Other matters

These Terms of Trade are governed by the laws of the state of Victoria and each party irrevocably submits to the non-exclusive jurisdiction of the courts of such state.
These Terms of Trade and any Quotes and written variations agreed to in writing by Heart & Soul Property Services represent the whole agreement between the parties relating to the subject matter of these terms.
These Terms of Trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
In entering into these Terms of Trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by Heart & Soul Property Services or any of its employees or agents relating to or in connection with the subject matter of these Terms of Trade.
If any provision of these Terms of Trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.

A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; sent