1.1 “Albert Smith” means Albert Smith Signs Pty Ltd ACN 010 000 147 at 59 Taylor Street Bulimba QLD 4171 (PO Box 226 Bulimba QLD 4171), Telephone: (07) 3395 9888 Facsimile: (07) 3891 0713.
1.2 “Albert Smith’s Cancellation Costs” means any costs for labour, materials, tooling, drafting and transport, manufacturing works in progress, and any Government fees or taxes including GST and without limiting the generality of the foregoing any other loss and damage arising because of the cancellation of this Quotation or other contract.
1.3 “Event” – means:
(a) any industrial dispute;
(b) any inclement weather;
(c) any law, riot, government restriction, civil commotion, Act of God; or
(d) any other cause beyond Albert Smith’s control, which directly or indirectly affects Albert Smith’s ability to promptly perform its obligations to do the Works.
1.4 “Goods” means any components or materials which Albert Smith uses to manufacture the Product.
1.5 “Product” means anything which Albert Smith manufactures for You in performing the Work and includes all discrete Goods making up the Product.
1.6 “Progress Claim” means part or all of the Quoted Amount which Albert Smith may require:
(a) upon receipt of order;
(b) at any time up to completion of the work;
(c) upon delivery of the product; or
(d) at any time or times during the performance of the Work.
1.7 “Quotation” means this Quotation which You have requested from Albert Smith, and includes these terms and conditions and any subsequent contract formed. If you accept this Quotation, you accept these terms and conditions as part of any subsequent contract.
1.8 “You” and “Your” means the person or company or entity who has requested this Quotation. Where that person is comprised or more than one person or company or entity then where ‘You’ is used in this Quotation. All parties comprising “You” will be bound jointly and severally by these terms and conditions and each party warrants that it has the authority to bind all of the other parties.
2.1 Subject to clause 2.2, this Quotation remains valid and open for acceptance by You up to and including the Quotation Expiry Date.
2.2 Albert Smith may:-
(a) Vary or withdraw the Quotation at any time before You accept it;
(b) After the date of the Quotation but before the Work is completed, adjust the Quotation for any variation in Albert Smith’s Costs which occur after the date of this Quotation.
2.3 Unless otherwise agreed to in writing by Albert Smith, this Quotation can only be accepted by You in writing and without any alteration or addition to the terms and conditions.
2.4 Your written acceptance is not effective until received by Albert Smith.
3 Cancellation of Contract/Quotation
3.1 Once You have accepted this Quotation, you may only cancel the subsequent Contract by written notice given to and received by Albert Smith.
3.2 Upon cancellation, You are immediately liable to pay Albert Smith’s Cancellation Costs.
4 Terms of Payment
4.1 You must pay to Albert Smith:
(a) The amount specified in any Progress Claim submitted to You within the agreed terms.
(b) The Price (less any Progress Claim payments made) within the agreed terms.
(c) Interest at the rate of 16% per annum on any outstanding amount owed to Albert Smith from the date due until paid.
(d) All financial institution fees, any legal costs and/or debt collection costs (the latter two on an indemnity basis), stamp duty and other government charges relating in any way to the establishment of operation of the contract or any security or any legal proceedings.
4.2 All payments required to be made by You to Albert Smith shall be made in full without any deductions or reductions for any set offs or counter claims by You.
4.3 Before the commencement of Work, You must complete and return Albert Smith’s application for Credit Account unless:
(a) You have made full payment of the Quoted Amount to Albert Smith; or
(b) You have provided security for the Price which is satisfactory to Albert Smith.
(c) No Work will be performed until You have complied with above clause and Albert Smith will not be liable to You for any loss or damage resulting from delay caused by Your failure to comply with that clause.
5.1 You may by written notice to Albert Smith request variations to the Work;
5.2 Where You request additional Work You must:
(a) Pay all costs incurred by Albert Smith in performing the additional Work; and
(b) Grant any extension of time reasonably necessary to enable Albert Smith to perform the additional Work.
6 Ability to Supply
6.1 Albert Smith will make every effort to carry out the Contract. If because of an Event, Albert Smith is unable to full fill any Contract, Albert Smith:
(a) Will not be liable for any loss or damage which You may suffer (including consequential loss or damage);
(b) May at its option, give written notice to You either to:
I. Terminate the contract: or
II. Extend the time for performance of the Contract:
(c) Will be entitled to be paid by You for any part of the Work done or any Product delivered. That payment will be calculated using the price rate set out in this Quotation.
7 Rights in relation to the Product
7.1 In connection with the Product while it remains the property of Albert Smith, You agree that:
(a) You have no right or claim to any interest in the Product to secure any liquidated or unliquidated debt or obligation Albert Smith owes to You;
(b) You are not entitled to claim any lien over the Product
(c) You will not create any absolute or defeasible interest in the Product in relation to any third party except as may be authorised by Albert Smith;
(d) where You are in actual or constructive possession of the Product:
I. You will not deliver the Product or any document of title to the Product to any person except as authorized in writing by Albert Smith.
7.2 Albert Smith and You agree that:
(a) Albert Smith retains property in the Product until Albert Smith has been paid in full for the Product under all individual contracts between Albert Smith and You;
(b) Albert Smith retains property in any Further Product until Albert Smith has been paid in full for the Product under all individual contracts for the supply of the Product between Albert Smith and You;
(c) You are a bailee of the Product and any Further Product until such time as property in it passes to You. This bailment continues in relation to each Product or Further Product until the Price has been paid in full, and you owe Albert Smith the duties and liabilities of a bailee;
7.3 You agree that Albert Smith has the right to bring an action against You if You fail to pay the Price, notwithstanding that ownership of the Product has not passed to You.
8 Governing Law
8.1 The Quotation and subsequent Contract will be governed by the laws of Queensland.
8.2 Any dispute arising in connection with this Quotation shall be heard in Queensland courts and You irrevocably submits to the jurisdiction of these courts.
8.3 You and Albert Smith agree that proceedings may be commenced in any court in Queensland having jurisdiction and consent to that court having locality jurisdiction notwithstanding that the court would not have jurisdiction without this consent.
8.4 If a clause or clauses in this Quotation are void, illegal or unenforceable, they may be severed without affecting the enforceability of the other provisions in this Quotation.
9 Read and Understood Terms
9.1 You acknowledge that you have read, and understood and accepted the terms of the quotation prior to accepting it.
10 Your Authority
10.1 You authorise Albert Smith to make such enquiries and receive such information from any of your bankers and business referees provided by You and otherwise from anyone as Albert Smith may reasonably consider necessary;
10.2 In accordance with Sections 18H and/or 18K and/or Section 18L(4) of the Privacy Act 1988 as amended, You:
(a) Agree to reports being given to Albert Smith for the purpose of assessing the application for credit or commercial credit or assessing whether to accept You as guarantor as the case may be;
(b) Agree that Albert Smith may use, for the purpose of assessing an application for credit or assessing whether to accept You as guarantor, information concerning Your commercial activities or commercial credit worthiness obtained from a person or body carrying on business or undertaking involving the provision of information about the commercial credit worthiness of persons;
(c) Authorise Albert Smith to exercise Your rights of access to Your credit information files and credit reports.
10.3 You agree that Albert Smith may seek from a credit reporting agency, a credit report containing personal information about You to assess whether to accept You as a guarantor for credit applied for, or provided to a party where You are named as guarantor.