Terms of Trade

1. APPLICATION OF TERMS

1.1 Except as may be expressly stated otherwise, including in any written quotation, proposal or letter of engagement submitted by Tyrrells Property Inspections Pty Limited trading as Tyrrells Building Advisory ABN 96 164 771 644 (TPI) to the Client, or a written contract of sale or engagement signed by TPI, these Terms of Trade (Terms) apply to every supply of goods or services (Products) by TPI to any Client as from 1 August 2024. TPI may accept or decline all or any part of the Client’s request to purchase Products in its absolute discretion.

1.2 These Terms, in conjunction with TPI’s Account and Credit Application (or predecessor document of this type) or any written quotation, proposal or letter of engagement signed by the Client, constitute the entire agreement between the parties relating in any way to its subject matter, unless agreed to otherwise by TPI and the Client in writing. All previous negotiations, understandings, representations, warranties, memoranda, or commitments about the subject matter of these Terms are merged in these Terms and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of these Terms or constitutes any collateral agreement, warranty or understanding. TPI shall not be responsible for errors in the Client’s specifications.

1.3 TPI does not represent or warrant that the content, which may be modified at any time, in websites, catalogues, brochures and leaflets published by TPI is accurate, dependable, suitable, or complete. TPI fulfills its obligation to provide information about the Products in the Product descriptions and reports published by TPI from time to time. TPI reserves the right at any time to modify the Products as well as the related technical and commercial information and documentation. The Customer shall ensure that any use or promotion of Products by the Customer to third-parties comprises the complete and up-to-date related technical and commercial information and documentation made available by TPI regarding the Products and any other documentation or information required by the applicable regulations.

1.4 Unless otherwise agreed in writing between the parties, the Client may not cancel an order (or any part of an order) unless the Client pays to TPI (in TPI’s sole discretion) all costs incurred by TPI in relation to the cancelled order (or cancelled part of an order) up until and including the date of cancellation.

2. PRICES

2.1 All prices published, and Products offered for supply by TPI are subject to change without notice. TPI reserves the right to increase the price of the Products, by giving at least one (1) months’ notice to the Client.  The Client should check the price of Products and any associated travel and administration charges before placing an order. Prices quoted are, unless otherwise stated, exclusive of goods and services tax (GST) and are valid for delivery of Products within 30 days of the date on which the Client communicates an offer to purchase Products to TPI.

3. GST

3.1 If GST is imposed on any supply made by TPI, the Client must pay to TPI, in addition to any consideration payable or to be provided by the Client for this supply, an additional amount for the supply calculated by multiplying the prevailing GST rate by the consideration for the relevant supply payable or to be provided (without any deduction or set off). Any amount payable by the Client is payable on demand by TPI, whether such demand is made by an invoice raised by TPI or otherwise.

4. DELIVERY

4.1 The Client acknowledges that:

(a) certain Products may not be available to Clients located outside TPI prescribed territories; and

(b) the delivery of certain Products may be subject to prescribed safety restrictions or limitations.

4.2 Any date given to the Client by TPI for delivery of Products shall be an estimate only, and, although TPI shall use commercially reasonable endeavours to meet such delivery date, TPI shall not be subject to or incur any penalty or liability for any claim, loss, damage, or obligation, direct or indirect, consequential, or otherwise, arising out of any delay in delivery or non-delivery regardless of the reason.  

4.3 If for any reason TPI is unable to deliver Products either within a reasonable time or at all, the applicable purchase order and/or contract of sale shall be cancellable, in full or only as to certain Products, at TPI’s option at any time, or at the Client’s option if TPI has been unable to deliver the Products within two (2) months of the date of the letter of engagement  contract of sale, or purchase order, whichever is the later; and neither TPI nor the Client shall be subject to or incur any penalty or liability for any claim, loss, damage or obligation, direct or indirect, consequential or otherwise, arising out of such cancelation.

4.4 The Products are always transmitted/delivered at the risk of the Client. 

4.5 The Client is responsible for inspecting and reviewing the Products upon delivery. It is the Client’s responsibility to inform TPI in writing, within seven (7) days of delivery of any defect in the Products. No complaint or return of Products shall be taken into consideration, after seven (7) days following delivery, except with the written agreement of TPI.

5. INSPECTION AND OTHER SERVICES

5.1 If the Client has contracted TPI to arrange for TPI’s building consultants to inspect and provide an appraisal and/or report regarding the condition of building or other works whether at the Client’s premises or at the premises of a customer of, or other third-party related to, or connected to the Client (Premises), the Client shall, at its expense, ensure that:

(a) the Premises are safely accessible to TPI’s building consultants, and adequate and safe power and lighting is available, on the date agreed for the inspection of the Premises;

(b) TPI’s building consultants are provided with such induction and site training as is appropriate and which TPI and the Client deem necessary having regard to the nature of the inspection and related services to be provided by TPI’s building consultants;

(c) TPI’s building consultants will not be exposed to any danger or threat to their health or safety, or to their equipment, in connection with the supply of the Products;

(d) the consent of the owner and or authorised occupier of the Premises, or of any neighbouring property which may be impacted by the inspection of the Premises, has been obtained regarding the supply of the Products; and

(e) the supply of the inspection and related services will not detrimentally impact any property proximate to the Premises or the environment generally.

5.2 The Client acknowledges that TPI’s building consultants may refuse, in their absolute discretion, to undertake the inspection and related services if the Premises are not in the condition prescribed in clause 5.1 or for any other environmental, health or safety issue. TPI shall not be subject to or incur any penalty or liability for any claim, loss, damage, or obligation, direct or indirect, consequential, or otherwise, arising out of any delay in the supply or non-supply of the Products regardless of the reason.  

6. PAYMENT

6.1 If the Client has not been granted a line of credit with TPI, the Client must pay to TPI the invoiced amount for the Products, including any associated travel and administration charges, plus GST, at the time the Client places the order, or as otherwise agreed in writing by TPI, selecting one of the payment options available. 

6.2 If the Client has been granted a line of credit with TPI, the Client must pay to TPI, or as TPI directs, the invoiced amount for the Products, including any associated travel and administration charges, plus GST, strictly within fourteen (14) days of the date of the invoice. The Client acknowledges and agrees that credit provided by TPI will be applied by the Client wholly or predominately for business/commercial purposes.

6.3 The Client must check all invoices and advise TPI of any errors or omissions within seven (7) days of receipt. Failing advice from the Client that the invoice contains any errors or omissions, the invoice may be deemed accepted by TPI.

6.4 At TPI’s sole discretion, a deposit may be required, prior to TPI accepting the Client’s request to purchase Products, and shall immediately become due and payable as stipulated by TPI.

6.5 All payments required to be made by the Client under these Terms will be made free of any set-off, or counterclaim and without deduction or withholding, unless agreed to otherwise by TPI and the Client in writing or as required by law.

6.6 Any amount due to TPI from time to time may be deducted from any monies which may be or may become payable to the Client by TPI.

6.7 Should the Client not pay for the Products supplied by TPI in accordance with these Terms, or as agreed in writing by TPI and Client from time to time, after issuing a written demand to the Client demanding payment within fourteen (14) days, TPI will be entitled to charge an administration fee of ten (10) percent of the amount of the invoice payable.

6.8 The Client acknowledges that TPI shall be at liberty to charge a surcharge for credit card transactions equal to the merchant fees incurred by TPI.

6.9 If the Client becomes insolvent, or defaults under these Terms or fails to make a payment to TPI by the due date, all money owing by the Client to TPI, whether by way of credit or otherwise, will become due and payable immediately. TPI reserves the right to suspend, with or without notice, any deliveries of Products if any payment due by the Client to TPI is overdue.

6.10 If the Client becomes insolvent, to the extent permitted by law, the Client remains liable under these Terms for payment of all liabilities incurred hereunder, even if TPI receives a dividend or payment consequent to the Client being insolvent.

6.11 The Client will pay TPI’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Client, including collection costs, debt recovery fees and legal costs on an indemnity basis.

7. PROTECTION OF TPI’S INTELLECTUAL PROPERTY

7.1 The Client acknowledges that TPI owns all right, title and interest to any and all Intellectual Property created in connection with the supply of the Products. TPI grants to the Client a non-exclusive license to use TPI’s intellectual property in the course of the promotion, supply, and distribution of the Products or goods and services comprising the Products, which for the avoidance of doubt includes reports, statements, affidavits provided by TPI to the Client.

7.2 “intellectual property” means all industrial and intellectual property whether protectable by statute, at common law or in equity, including all copyright, patents, designs, registered and unregistered trademarks, trade secrets and know-how in respect of which TPI is owner or licensee and which the Client has been permitted to use pursuant to the program.

7.3 The Client may only make use of the intellectual property strictly in accordance with the directions of TPI. The Client may not use any TPI owned or licensed, registered or unregistered, trademarks or business names, including the “Tyrrells” name or logos, or part, facsimile or adaptation thereof, in its own corporate, business or trading name or as part of its get up.

7.4 The Client will notify TPI, immediately upon becoming aware of any infringement of the intellectual property. TPI may take whatever action it deems necessary to protect the intellectual property. The Client will act in good faith and use its reasonable endeavours to assist TPI in the protection of the intellectual property, including in relation to the prosecution of any infringer of the intellectual property.

8. RISK AND TITLE

8.1 Risk of damage to, or loss of the Products passes on delivery to the Client or its nominated agent.

8.2 Title to any Products delivered to the Client will not pass to the Client until the Client has paid all amounts that it owes to TPI in full (including the purchase price for the Products).

8.3 Should the Client not pay for the Products supplied by TPI in accordance with these Terms, or as agreed in writing by TPI and Client from time to time, after issuing a written demand to the Client demanding payment within fourteen (14) days, the Client’s licence to use the Intellectual Property of TPI as permitted pursuant to clause 7 is forthwith withdrawn upon expiration of the fourteen (14) day period without further notice to the Client until such time as the Client has paid TPI all moneys due for the Products and any other moneys due to TPI pursuant to these Terms.

8.4 TPI only consents to the Client using or promoting the Products in the ordinary course of the Client’s business to bona fide customers and unrelated third parties on arm’s length terms, while no default is subsisting.

8.5 The Client will be responsible for TPI’s reasonable costs and expenses in exercising its rights under these Terms where the Client is otherwise in default of these Terms.

8.6. If Products include or are supplied with software, the Client is granted only a limited license to use the software with the Products, and ownership of and title to the software shall not pass to Client.

8.8 The Client agrees to indemnify TPI and keep TPI indemnified against any claim that arises out of the Products supplied, or not supplied, under these Terms to the extent that such a claim is a consequence of a default by the Client under these Terms. This indemnity includes any legal fees and expenses TPI incurs to enforce its rights, on an indemnity basis.

9. SECURITY

8.1 The Client waives its right to receive any notice (including notice of a verification statement) that is required by the Personal Property Securities Act 2009 (Cth) (PPSA) unless the notice is required by the PPSA and cannot be excluded. 

9.2 The Client agrees not to exercise its rights to make any request of TPI under section 275 of the PPSA. However, this does not limit the Client’s rights to request information other than under section 275 of the PPSA. Neither the Client nor TPI will disclose any information of the kind mentioned in section 275(1) of the PPSA unless section 275(7) of the PPSA applies.

9.3 Until ownership of the goods passes, the Client waives the rights it would otherwise have under the PPSA (unless otherwise agreed to in writing by TPI and the Client) under sections 95 to receive notice of intention to remove an accession; 118 to receive notice that the Supplier intends to enforce its security interest in accordance with land law; 121(4) to receive a notice of enforcement action against liquid assets;  129 to receive a notice of disposal of goods by the Supplier purchasing the goods; 130 to receive a notice to dispose of goods; 132(2) to receive a statement of account following disposal of goods; 132(4) to receive a statement of account if no disposal of goods for each six (6) month period; 135 to receive notice of any proposal of the Supplier to retain goods; 137(2) to object to any proposal of the Supplier to retain or dispose of goods; section 142 to redeem the goods; 143 to reinstate the security agreement; and section 157(1) and 157(3) to receive a notice of any verification statement.

9.4 These Terms, alone or in conjunction with TPI’s Account and Credit Application (or predecessor document of this type) or any written quotation, proposal or letter of engagement signed by the Client, are a security agreement for the purposes of the PPSA. The Client acknowledges that it has granted TPI a security interest in the Products and their proceeds which is a purchase money security interest to the extent that it secures payment of all or part of the purchase price for Products.

9.5 The Client charges in favour of TPI all its estate and interest in any real property, whether held in its own right or as capacity as trustee, the Client owns at present and in the future with the amount of its indebtedness hereunder until discharged.

9.6 The Client charges in favour of TPI all its estate and interest in any personal property, whether held in its own right or as capacity as trustee, the Client owns at present and in the future with the amount of its indebtedness hereunder until discharged.

9.7 The Client consents to TPI perfecting any security interest arising in connection with these Terms by registering a financing statement or otherwise recording the details of these Terms on the Personal Property Securities Register (PPSR) and any other applicable security registers in any manner it considers appropriate. The Client agrees to do anything TPI asks to ensure that the security interest is enforceable, perfected, and otherwise effective; and has priority over all other security interests.

9.8 The Client agrees to pay or reimburse TPI for any fees or charges for the PPSR or other registrations contemplated by these Terms.

9.9 TPI may allocate any payment received from the Client in any manner it determines, including in any manner to preserve any security interest it has in relation to any Products, and may do so at the time of receipt or at any time afterwards, but in default will apply same first to payment of any unsecured amount owing to TPI, next as to any reasonable enforcement expenses and then as to any secured balance owing to TPI. On default by the Client, TPI may re-allocate any payments previously received and allocated.

9.10 The Client irrevocably grants to TPI the right to enter upon the Client’s property or premises, with notice, and without being in any way liable to the Client or to any third party, if TPI has cause to exercise any of its rights under sections 123 and/or 128 of the PPSA, and the Client shall reasonably indemnify TPI from any claims made by any third party as a result of such exercise.

9.11 The Client must notify TPI at least fourteen (14) days before it changes its name; changes its place of registration or incorporation; or changes or applies for an Australian Company Number, Australian Business Number, Australian Registered Body Number, or Australian Registered Scheme Number under which an interest in any of the Products is or will be held. The Client must notify TPI if anything mentioned in above occurs immediately upon becoming aware of it.

9.12 Words and phrases used in this clause that have defined meanings in the PPSA have the same meaning as in the PPSA unless the context indicates otherwise.

10. LIABILITY

10.1 The Products come with certain guarantees under Australian Consumer Law. TPI warrants the Products to be free from defects in materials and workmanship at the time of delivery by TPI to the Client. 

10.2 In relation to the supply of goods, to the extent permitted by law, TPI’s liability is limited, at TPI’s election, to replacing the goods or supplying similar goods; repairing the goods; providing for the cost for replacing the goods or for acquiring equivalent goods; and providing for the cost for having the goods repaired.

10.3 In relation to the supply of services, to the extent permitted by law, TPI’s liability is limited, at TPI’s election, to supplying the service again; or providing for the cost of having the services supplied again.

10.4 To the fullest extent permitted by law all terms, conditions, warranties, and representations with respect to the Products are hereby disclaimed and excluded and in no event shall TPI be liable for any claims or damages relating to the combination of the Products with any other goods, or for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Client in connection with the Products supplied under these Terms; nor shall the Seller’s liability to the Client exceed the price of the Products supplied by the Seller to the Client (to the extent that is permitted by law).

10.5 The Client acknowledges that the Products may be used in a variety of applications and that there will be no sale of Products by sample. The Client relies on its own knowledge and expertise, and not the advice or assistance of TPI, to satisfy itself as to the Products’ fitness for the purpose or intended use by the Client.

10.6 TPI shall incur no liability whatsoever (including liability for any consequential financial loss suffered by the Client) for an inability to perform or a delay in performance of its obligations in respect of the supply of the Products if that inability or delay arises directly or indirectly from the happening of any event not within the reasonable control of TPI, including war, acts of terrorism, strikes, pandemics, epidemics, infectious diseases, quarantines, or other viral outbreaks, disruption of transportation, shortage of energy, water, raw materials or disruption of TPI’s suppliers, capacity constraints, acts or omission of any government, natural disaster, accidents or any event leading preventing access to all or a part of TPI’s premises or to the Premises referred to in clause 5.

11. PROTECTION OF TPI’S CONFIDENTIAL INFORMATION

11.1 The Client shall hold all confidential information of TPI in confidence and shall not make use of it except for the purpose of performing its obligations under these Terms. The Client may only disclose or permit or cause the confidential information of TPI to be disclosed pursuant to a valid order by a court or governmental body (provided that the Client provides TPI with prior written notice of such disclosure in order to permit TPI to seek confidential treatment of such information); or to an employee, officer or professional adviser of the Client with a “need to know” the confidential information for the purpose of performing the obligations of the Client under these Terms. The Client shall procure that those of its employees, officers, and professional advisers to whom confidential information is disclosed comply with the obligations of the Client, as the case may be, pursuant to these Terms.

11.2 “confidential information” means any information or material (including data provided to the Client by third parties) disclosed by TPI to the Client or observed from TPI by the Client in accordance with these Terms relating to the Products or TPI’s business operations, intellectual property, marketing, Clients, suppliers, processes, dealings, finances, reports, transactions, prices, or other affairs of TPI.

11.3 The Client shall take all necessary steps to prevent the confidential information from falling into the public domain or the possession of unauthorised persons and will advise TPI in writing immediately upon becoming aware of any misappropriation or misuse by any person of such confidential information. Confidential information may not be removed from the premises of the Client.

11.4 Except as required by law, the Client will not disclose to any person any confidential information in any manner which may cause or is calculated to cause injury or loss to TPI or any associate of TPI other than in respect of any information which has become public.

12. MISCELLANEOUS

12.1 An agreement between the parties may not be varied without the prior written consent of TPI.

13.2 These Terms are qualified by any law which applies, and which cannot be excluded. If any provision of these Terms is deemed to be unlawful or unenforceable, such provision shall be read down to the extent permitted or severed from these Terms (unless the severance of the provision would materially affect or alter the nature or effect of the obligations of the parties under these Terms), without affecting the enforceability of the other provisions.

12.3 A failure or delay by TPI to exercise a power or right under these Terms does not operate as a waiver of that power or right, and the exercise of a power or right by TPI does not preclude its future ability to exercise that or any other power or right.

12.4 Insofar as they apply to the ordering, purchase, supply, fulfilment, and delivery of Products from TPI, these Terms are governed by and must be construed according to the law of New South Wales, Australia and the parties submit to the jurisdiction of the courts in that State.

Effective: 1 July 2024