Steve Miller Rural Services Limited – Terms & Conditions of Trade
1. Definitions
1.1 “SMRS” means Steve Miller Rural Services Limited, its successors and assigns or any person acting on behalf of and with the authority of Steve Miller Rural Services Limited.
1.2 “Client” means the person/s buying the Goods (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods, parts or Services supplied by SMRS to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Equipment” means all Equipment including any accessories supplied on hire or loan by SMRS to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire/loan, or any other work authorisation form provided by SMRS to the Client.
1.5 “Price” means the Price payable for the Goods/Equipment hire as agreed between SMRS and the Client in accordance with clause 5 below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.
2.2 These terms and conditions may only be amended with SMRS’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and SMRS.
2.3 The Client acknowledges and accepts that the supply of Goods or parts for accepted orders may be subject to availability and if, for any reason, Goods or parts are not or cease to be available, SMRS reserves the right to vary the Price with alternative Goods or parts as per clause 5.2. SMRS also reserves the right to halt all Services until such time as SMRS and the Client agree to such changes.
2.4 If the Client’s property or any component is submitted for repair under a warranty or insurance claim, and the claim is declined or payment delayed, the Client is liable for payment and agrees to pay for any such repair.
2.5 If SMRS is requested to organise other supplies or Services on behalf of the Client, the Client agrees to pay the third party SMRS on invoice by the due date.
2.6 The Client accepts and acknowledges that a minimum call out fee applies for any Services performed by SMRS after hours. Such call out fee shall be equal to two (2) hours labour at SMRS’s standard hourly labour rate, plus travel costs, plus parts.
2.7 Where the Client requests SMRS to insert or install any equipment (including, but not limited to, pumps) into existing wells or bores which have not been drilled by SMRS or SMRS’ authorised contractor for the purposes of the Services performed by SMRS, the Client agrees to indemnify SMRS for any costs, damages, or delays caused by the condition of the existing well or bore (including, but not limited to, biological or mineral build-up, partial collapse, or limited or poor quality water supply). SMRS accepts no liability or responsibility for repairs to, re-drilling of, retrieval of equipment from, or lack of performance of any well or bore which is due to the failure of such well or bore as a result of its existing condition.
3. Authorised Representatives
3.1 Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to SMRS as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies SMRS in writing that said person is no longer the Client’s duly authorised representative).
3.2 In the event that the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise SMRS in writing of the parameters of the limited authority granted to their representative.
3.3 The Client specifically acknowledges and accepts that they will be solely liable to SMRS for all additional costs incurred by SMRS (including SMRS’s profit margin) in providing any works, Goods, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).
4. Change in Control
4.1 The Client shall give SMRS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by SMRS as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At SMRS’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by SMRS to the Client; or
(b) the Price as at the date of delivery of the Goods/Equipment according to SMRS’s current price list; or
(c) SMRS’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 SMRS reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, change of design, pre-existing sub-standard / non-compliant / faulty work or sub-standard materials, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Services; or
(d) if a variation to the Goods or parts which are to be supplied is required due to stock availability; or
(e) in the event of increases to SMRS in the cost of labour or materials which are beyond SMRS’s control.
5.3 SMRS reserves the right to charge for time and costs associated with system design.
5.4 At SMRS’s sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by SMRS, which may be:
(a) on delivery of the Goods/Equipment;
(b) by way of instalments/progress payments in accordance with SMRS’s payment schedule;
(c) for certain approved Client’s, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by SMRS.
5.6 SMRS may submit a detailed payment claim at intervals not less than monthly for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations and the value of Goods delivered to the site but not installed.
5.7 No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, SMRS reserves the right to treat all retentions as placing the Client’s account into default.
5.8 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Client and SMRS.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to SMRS an amount equal to any GST SMRS must pay for any supply by SMRS under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods/Equipment
6.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at SMRS’s address; or
(b) SMRS (or SMRS’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
6.2 At SMRS’s sole discretion the cost of delivery is in addition to the Price.
6.3 SMRS may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 Subject to clause 6.5 it is SMRS’s responsibility to ensure that the Services start as soon as it is reasonably possible.
6.5 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that SMRS claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond SMRS’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify SMRS that the site is ready.
6.6 Any time or date given by SMRS to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and SMRS will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, SMRS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SMRS is sufficient evidence of SMRS’s rights to receive the insurance proceeds without the need for any person dealing with SMRS to make further enquiries.
7.3 If the Client requests SMRS to leave Goods outside SMRS’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
7.4 Any advice, recommendation, information, assistance or service provided by SMRS in relation to Goods or Services supplied is given in good faith, is based on SMRS’s own knowledge and experience and shall be accepted without liability on the part of SMRS and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
7.5 Where the Client has supplied materials for SMRS to complete the Services, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. SMRS shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Client.
7.6 The Client acknowledges that SMRS is only responsible for parts that are replaced by SMRS and that in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify SMRS against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
8. Access
8.1 The Client shall ensure that SMRS has clear and free access to the work site at all times to enable them to undertake the Services. SMRS shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of SMRS.
8.2 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by SMRS. The Client agrees to indemnify SMRS against all costs incurred by SMRS in recovering such vehicles in the event they become bogged or otherwise immovable.
9. Underground Locations
9.1 Prior to SMRS commencing any work the Client must advise SMRS of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
9.2 Whilst SMRS will take all care to avoid damage to any underground services the Client agrees to indemnify SMRS in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.
10. Title To Goods
10.1 SMRS and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid SMRS all amounts owing to SMRS; and