Version 1.0
1. Definitions
"The Company" – means Simply Cleaning Co Pty Ltd or any franchisees trading under a franchisee agreement.
"Cleaner" – means the person or firm carrying out cleaning services on behalf of the Company.
"Client" – means the person, firm or corporate body together with any subsidiary or associated Company as defined by the Corporations Act to whom the Company supplies the cleaning services.
"Service" – means the cleaning services carried out on behalf of the Company.
"Cleaning Visit" means the Cleaner's visit to the Client's service address to carry out the Service.
2. Contract
2.1. These Terms and Conditions represent a contract between Simply Cleaning Co Pty Ltd and The Client.
2.2. The Client agrees that any use of The Company's services, including placing an order for services by telephone, email, or website forms, shall constitute the Client's acceptance of these Terms and Conditions.
2.3. Unless otherwise agreed in writing, these Terms and Conditions shall prevail over any other terms of business or purchase conditions put forward by The Client.
2.4. No variation or alteration of these Terms and Conditions shall be valid unless approved in writing by a director of the Company.
2.5. The Company operates a minimum charge of 2 hours per cleaning visit for residential and commercial cleaning and 4 hours for any construction cleaning.
3. Payment
3.1. All work carried out by The Company at your request, whether experimental or otherwise, will be charged accordingly. Any work undertaken by The Company on behalf of The Client is carried out on the basis that The Client has fully approved such work whether or not we have received an official order providing there is evidence of written or verbal confirmation to proceed, including letter, facsimile or email correspondence between the parties.
3.2. Payments of fees rendered by invoice are due within the dates stated on the invoice via direct debit, credit card, or appointed Bank.
3.3. Interest may be applied to any overdue accounts at a rate of 10%. Where payment has yet to be received, we reserve the right to withhold services, documents, and information, cease to work on your account, and terminate the engagement if payments are unduly delayed.
3.4. Any expenses incurred while working on your behalf will be charged, and appropriate records will be kept and available for inspection. Such costs may include meeting rooms and other facilities, internal printing, courier charges, and international but not national telephone calls.
3.5. Consistent late payment will incur a 100% pre-payment for all future work.
3.6. We have a statutory right to interest and compensation for debt recovery costs under the late payment legislation if not paid according to agreed credit terms.
3.7. Unless otherwise stated, all prices shall be in Australian Dollars.
3.8. We shall invoice weekly, bi-weekly, monthly, or at the end of a project, dependent on the agreed terms.
3.9. All prices are Net, and no settlement discount is allowed. All accounts are payable by 7 (Seven) days from the invoice date unless otherwise agreed by The Company in writing. Note that the payment terms are required whether you have signed off on the copy.
3.10. After the 7-day payment period, all further work for The Client will cease.
3.11. All quotations we offer are deemed valid for 30 (Thirty) days, after which we reserve the right to revise the quote.
3.12. We provide services on a one-off and retainer basis.
3.13. Any additional work requested not covered in the original brief will be quoted separately and added to the original invoice. One month's notice is required to discontinue the Service.
3.14. All Cleaning service prices are reviewed annually and adjusted in line with inflation, minimum wage increases, or any reasonable circumstances.
4. Equipment
4.1. The Company provides cleaning materials unless agreed otherwise. If you require us to use your solutions or equipment, they must be safe to use/operate, in complete working order, and must not require any special skills to be used for cleaning.
4.2. If the Client has complicated equipment, the Client must provide clear and detailed instructions to the Cleaner.
4.3. If the Client requires the Cleaner to use their materials and equipment, including a vacuum cleaner, the Company cannot accept any liability should anything go wrong with the equipment or its outcome.
5. Checklists
5.1. We shall provide the Client a checklist on request or ask all clients to leave a list of priorities for the Cleaner. Providing a list means that the Cleaner can tick off the top to bottom what they can do within the allotted time.
6. Refunds
6.1. No refund claims will be given once the cleaning service is done. If, for any reason, the Client is dissatisfied with any aspect, they must notify the Company within 24 hours, and someone will rectify this.
6.2. Refund will be issued only if the Client has canceled a cleaning visit within the allowed time (24 hours) before the start of the cleaning session and the Company has already received a payment.
6.3. Refund will be issued if a Cleaner does not attend a cleaning visit, payment the Company has already received.
7. Cancellation
7.1. The Client agrees to pay the total price of the cleaning visit if: a) The Client cancels or changes the date/time less than 24 hours before the scheduled appointment; b) The Client fails to provide access to the service premises, thus preventing the Company to carry out the booked work; c) There is a problem with the Client's keys and the Cleaner cannot let themselves in. They must open all locks without special effort or skills if keys are provided.
7.2. If the Client needs to change a cleaning day or time, the Company will do its best to accommodate them. A minimum of 24 hours' notice is required.
Please note that the Company cannot guarantee that the same operative will be available on a new day and at the time the Client requires. Any changes in the cleaning schedule are subject to availability.
7.3. The Company's cleaning operatives work on any day of the week, including public holidays, at the discretion of the staff and Company. If the Client's cleaning visit is due on a Holiday and they haven't called or emailed the Company to cancel the visit 24 hours before the start of the cleaning session, the Client agrees to and understands that the regular amount due for that cleaning visit will be charged regardless of whether the cleaning operative has cleaned the Client's property or not.
8. Termination
8.1. The Client may terminate any Contract by giving 30 days prior written notice once the initial Contract (12 months or agreed contractual term) has ended.
8.2. If The Client wishes to terminate the Contract within the initial Contract (12 months or agreed contractual term), The Client must pay the outstanding balance for the remainder of the Contract.
8.3. The Client agrees to pay a cancellation fee equivalent to 30 days of Service if: 1) No notice is given; 2) The Client provides termination of notice less than 30 days
8.4. Before termination of the Contract, the Client is obliged to provide details of any incoming contractor.
9. Claims
9.1. The Company's public liability insurance will cover damages caused by a cleaning operative working on behalf of the Company up to $20,000,000.00.
9.2. The Client agrees that due to the nature of the Service, the Company guarantees only to correct any problems reported within 24 hours. If a problem occurs on a Saturday, it must be written by Monday 12.00 pm to be accepted as a valid claim. Failure to do so will entitle the Client to nothing. The Company may require entry to the location of the claim within 24 hours to correct the problem. Any refunds or adjustments must be requested from the Company directly and subject to approval by the Company.
9.3. The Client waives his right to stop payment on their card unless the Company fails to make good on the guarantee shown in 15.
9.4. While the Cleaners try not to break items, accidents happen. Identical replacement is always attempted but has yet to be guaranteed. For this reason, the Company requests that all irreplaceable items (whether monetarily or sentimentally valuable) be stored away or not cleaned by the cleaning operatives.
9.5. The Company will repair the item at a cost in case of damage. If the item cannot be repaired, the Company will rectify the problem by crediting the customer with the item's present actual cash value toward a like replacement from a Company's source upon payment of cleaning services rendered.
9.6. The Company shall not be responsible for damage due to faulty or improper installation of any item. All surfaces (i.e., marble, granite, stone, etc.) are assumed sealed and ready to clean without causing harm.
9.7. Any attempt to commit insurance fraud or any use of false information to achieve any fraud will be prosecuted to the fullest extent of the law by the Company and the Insurance Provider(s). Monetary compensation, as well as legal fees, may incur.
9.8. Key replacement/locksmith fees are paid only if our operatives lose keys. There is a $60 per location liability limit.
10. Complaints
10.1. All complaints are taken seriously. If you are unhappy with any aspect of our Service, please call us as soon as possible and give us a chance to rectify it. Your custom is essential to us; we want you to be happy.
10.2. If the Client is dissatisfied with a currently occurring service, The Company asks that The Client notifies us as soon as they notice anything that might be to their dislike by calling 1300 232 117 and emailing info@thesimplyco.com.au. Please do not wait until the Service ends.
11. Liability
11.1. The Company shall not be liable under any circumstances for any loss, expense, damage, delay, costs, or compensation (whether direct, indirect, or consequential) which may be suffered or incurred by the Client arising from or in any way connected with a late arrival of Company operatives at the service address. The Company endeavours to be right on time on any visit, but sometimes, due to transport-related and other problems beyond the Company's control, the Company operatives may arrive with a delay, or the cleaning visit may be re-scheduled.
11.2. The Company shall not be liable under any circumstances for any loss, expense, damage, delay, costs, or compensation (whether direct, indirect, or consequential) which may be suffered or incurred by the Client arising from or in any way connected with – 1. A cleaning job is incomplete due to the lack of hot water or electricity 2—third-party entering or present at the Client's premises during the cleaning process; 11.3. Any existing damage to the Clients property in the form of old stains/burns/spillages etc., cannot be cleaned/removed completely by the cleaning operative.
12. Supplementary Terms
12.1. If the Client requests keys to be collected by the Company's operatives from a third party's address, then a $35.00 charge will apply. The charge will cover only the pick up of keys. If said keys must be returned to the third party's address or any other address, the additional charge of $35.00 will apply.
12.2. The Company reserves the right to re-evaluate rates at any time should the Client's initial list of tasks change.
12.3. The Company reserves the right to amend the initial quotation should the Client's original requirements change.
12.4. If any estimates of how long it will take the cleaning operatives to complete the job are being provided, those are only estimates based on the average time it takes to clean a home or an office of similar size to the Client's; it is not easy to calculate precisely how long such tasks may take and that a degree of flexibility may be required. Please note that one-off cleans may take longer to complete due to longer intervals between cleaning sessions, number, and type of cleaning tasks required compared to the regular maintenance cleaning of the same property.
12.5. The Client understands that the price he has been quoted may vary according to the condition of the property and room sizes etc.
12.6. The Company shall endeavour to arrange a replacement cleaner if your regular Cleaner cannot attend a scheduled visit and will inform the Client before the organised cleaning.
12.7. Post Construction Cleaning (Builders Cleaning), Event Cleaning, or badly neglected homes may take up to three times longer than a well-maintained home requiring general cleaning. Therefore the Company advises the Client to ask for our specialist cleaning services: Builders Cleaning or Event Cleaning.
12.8. The cleaning operatives are not allowed to hand wash any items of clothing belonging to the Client. The Company advises that our cleaners can only use a washing machine.
12.9. All fragile and highly breakable items must be secured or removed.
12.10. The Company reserves the right to make reasonable changes to the Terms and Conditions in agreement with the other party.
13. Our Guarantee
13.1. The Company has built its business and reputation by providing its clients with the best possible cleaning service. Still, the Company realises that because its operatives are human beings, they sometimes make mistakes. For this reason, the Company offers a Guarantee. If the Client is not satisfied with any areas that have been cleaned, the Company's operative will return to the Client's premises and re-clean those areas free of charge.
Please note that this guarantee will not apply if the condition of the premises has deteriorated since the original cleaning was undertaken.
14. Simply Cleaning Co Build Pty Ltd (known as Simply Projects Co)
14.1 Simply Cleaning Co Build Pty Ltd will commence work only when we have received a signed contract or company purchase order instructing Simply Cleaning Co Build Pty Ltd to proceed with the Scope of Works as quoted.
14.2 Windows: No allowance has been made for any water stains, concrete spillage, paint specs, or other glass defects which might require buffering, chemical treatment, or any other work method other than the use of a mop and squeegee. These are defects by the said trades and will be considered a variation and incur an additional charge, plus the cost of materials (unless supplied by others).
14.3 No liability is taken for surfaces with concrete splatter/paint, as this is a trade defect. All due care is taken to remove or diminish the effect of these residues; however, we cannot guarantee areas concerned are perfect or without fault post-cleaning.
14.4 If trades are still onsite, this may cause the cleaning to be extended, so please ensure we are the last trade on site so that we may utilize our time in the most effective way for your business.
14.5 Simply Cleaning Co Build Pty Ltd will forward all Documentation, SWMS, Insurance, Worker's Compensations, and staff identifications/licences once quotation/s have been approved.
14.6 The quote is valid for 30 days. Pricing may need to be revised if the commencement of work exceeds this period.
14.6 Payment is to be made within fourteen days of receipt of Simply Cleaning Co Build Pty Ltd invoice in accordance with the Building & Construction Industry Security of Payment Act 1999. If there is a contract in place stipulating other terms and conditions, 14.6 will apply.
14.7 Any upfront request of fees /deposit by Simply Cleaning Co Build Pty Ltd must be paid before any work commences.
14.8 Please forward us an official purchase order (PO) at your earliest convenience so we may allocate the time to begin work. Email projects@thesimplyco.com.au with Attention: Project Team/Sheree
Simply Workforce Co - Terms and Conditions
1. DEFINITIONS
In these Terms and Conditions, capitalised terms have the following meanings unless otherwise indicated:
1.1 “SIMPLY WORKFORCE CO” means the Labour Hire / Supplier Services company, trading as Simply Workforce Co with ABN 35 662 385 113.
1.2 “CUSTOMER” means a person or entity whose order for the purchase or hire of Goods or request for supply of Services is accepted by the Supplier.
1.3 “DIRECTOR” means where the Customer is a corporation, all directors of that corporation and where the Customer is a trust that has a corporate trustee all directors of the trustee.
1.4 “CUSTOMER” means that person (or persons) and/or the party named in the applicable Quote.
1.5 “CLAIM” means any demand, claim, action, proceeding, judgment, damage, loss, cost expense, or liability incurred by or against a party, however arising and whether present, unascertained, immediate, future, or contingent and whether arising in relation to matters which occurred in the past.
1.6 “LABOUR HIRE SERVICES” means the provision by the Supplier to the Customer of the Supplier’s labour hire workers as required by the Customer to perform the Services.
1.7 “PRICE” means the cost of the Services as agreed between the Supplier and the Customer for the performance of a Service.
1.8 “QUOTE” means a job quotation issued by Simply Workforce Co to the customer in relation to a request for Services.
1.9 “QUOTED DATE” means the date of delivery as agreed between the Supplier and the Customer.
1.10 “SERVICES” means all services supplied by the Supplier to the Customer.
1.11 “TERMS” means these terms and conditions and where the context so permits shall include the agreement formed between the Supplier and the Customer and/or Directors.
1.12 “CONTRACT’’ means the contract between Simply Workforce Co and the Customer for the provision of Services and includes these Terms and conditions and all applicable Forms, Quotes and Invoices between Simply Workforce Co
and the Customer.
1.13 “DAILY RATE’’ means the daily rate for the Labour Hire Services, as set out in the applicable Schedule of Rates.
1.14 ‘’INVOICE’’ means an invoice for Services issued by Simply Workforce to the Customer.
1.15 ‘’INSTRUCTIONS’’ means all relevant information including operation manuals, instructions, work and health safety procedures, time work instructions and other directions provided by Simply Workforce Co for the Goods whether in writing.
1.16 ‘’CONTRACTED STAFF MEMBER’’ means a staff member of Simply Workforce Co who performs the Labour Hire Services.
2. CUSTOMER
OBLIGATIONS/
ACKNOWLEDGMENTS 2.1 The headings used in this agreement do not form part of these Terms and are for convenience only.
2.2 Words importing the singular shall include the plural and vice versa, words importing a gender shall include other genders and references to a person shall be construed as references to an individual, firm, body corporate, association (whether incorporated or not),
government and governmental, semi governmental and local authority or agency.
3. GENERAL
3.1 These Terms replace any previous agreements or terms and conditions of sale or negotiation, understanding, or communication in relation to the
provision of Services.
3.2 Unless otherwise agreed in writing by the Supplier, any terms, and conditions of the Customer’s deviating from or inconsistent with these Terms are expressly rejected by the Supplier. Any variations to these Terms not expressly agreed to in writing by the Supplier are expressly rejected by the Supplier.
3.3 A quotation shall not constitute an offer to provide Services to the Customer. No contract for the supply of provision of Services shall exist between the Supplier and the Customer unless the Customer’s order for Services has been accepted by the Supplier. The Supplier may accept or refuse any order for Services in its absolute discretion and may make its acceptance of an order conditional upon it receiving a satisfactory assessment from the Customer.
3.4 Once an order from a customer has been accepted by the Supplier:
a) the order cannot be cancelled by the Customer without the written consent of the Supplier; and
b) the order cannot be varied by the Customer at any time after 4 hours of the Customer submitting the order to the Supplier.
3.5 The Supplier may vary these Terms by notice in writing to the Customer, including through notified variations made on the Supplier’s website. The Customer agrees that the purchase of Services after the date of notice of variation will be deemed to be an acceptance of such varied Terms.
3.6 Should there be any variation to any of the information supplied by the Customer to the Supplier concerning the structure or nature of the Customer’s
business (such as a conversion to or from a Company or Trust) the Customer shall forthwith notify the Supplier in writing. If this information is not provided, and the Supplier suffers loss as a result, the Customers agrees to compensate the Supplier for an amount that is no less than the amount of loss that the Supplier suffered.
3.7 Any order received by the Supplier from the Customer for the supply of provision of Services and the Customer’s acceptance of Services supplied by the
Supplier shall constitute acceptance of these Terms.
3.8 Upon acceptance of these Terms by the Customer the Terms are irrevocable and can only be varied in accordance with these Terms.
3.9 The Supplier’s agents or representatives are not authorised to make any representations, or statements on behalf of the Supplier (including any purporting to vary these Terms or enter further agreements) and the Supplier shall not be liable for any unauthorised representations or statements made by the Supplier’s agents or representatives.
3.10 In the event that the whole or any part or parts of any provisions in these Terms should be held to be void or unenforceable in whole or in part such provision or part thereof shall to that extent be severed from these Terms but the validity and enforceability of the remainder of these Terms shall not be affected.
3.11 The Supplier reserves the right to sub-contract the provision of Services or any part thereof to a third party.
3.12 The Customer agrees that a statement in writing signed by the Supplier’s manager certifying that monies are payable by the Customer to the supplier shall be prima facie evidence of the monies so payable.
3.13 The Supplier shall be under no liability whatsoever to the Customer or any third party for any indirect and/ or consequential loss and/or expense (including loss of profit) suffered by the Customer or third party arising out of a breach by the Supplier of these Conditions.
3.14 In the event of any breach of these Conditions by the Supplier the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of Services.
3.15 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
3.16 The failure by the Supplier to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision.
3.17 Each party must execute any document and perform any action necessary to give full effect to these terms, whether before, or after performance of these Terms.
3.18 The Supplier and/or Customer agree and acknowledge that this application may be completed by the Customer utilising the Supplier’s online application process through the Supplier’s website. This may include the insertion of the Customer’s electronic signature. Once this application is completed in this method and if the application is deemed acceptable by the Supplier, the Supplier and/or Customer agree that the Supplier may rely on this application (and any accompanying Guarantee) as if it had been executed in writing by the Customer in writing. To be clear, once the application is accepted by the Supplier, the Services are supplied by the Supplier to the Customer, the Customer agree that such supply of Services are made based on these Terms as if the Terms had been executed by the Supplier and/or Customer in writing.
3.19 The Supplier may at any time assign, novate or otherwise dispose of or deal with its rights and obligations under these Terms by notice in writing to the Customer. The Customer agrees that any order for the provision of Services submitted by the Customer to the Supplier after the date of notice of assignment will be deemed to be an acceptance of such assignment.
3.20 These Terms and the supply of the provision of Services by the Supplier to the Customer shall be governed by and construed in accordance with the laws of New South Wales.
3.21 Notice to be given by the Customer to the Supplier may be delivered personally or sent to the Supplier at its current business address. Notices to be given to the Customer by the Supplier may be delivered personally or sent to the Customer’s last known address provided by the Customer to the Supplier and unless the contrary is proved shall be taken as delivered on the second business day following posting. Invoices and statements are deemed received by the Customer on the second business day after posting by ordinary prepaid post.
3.13 You must not transfer, assign, encumber or loan any contracted staff member and must not (except for the unsafety jobsite / poor performance purpose) remove the contracted staff member or allow it to be removed from the site address notified to us for the use of Labour Hire Services without the written consent from us.
3.14 You must not make any alter any task or work schedule once is assigned to our contracted member staff or interfere with the Labour Hire Services without consent by Supplier.
3.15 You must ensure that the contracted staff member works at a safety jobsite.
3.16 You agree that we are entitled to assume that anyone appearing to be an authorised person is authorised to sign a schedule and enter into any dealings in respect of this agreement.
3.17 You agree that you understand the work health and safety procedures and proper use of the Regulations and Acts that involve safety practices and have received adequate training in their operation and use.
4. REGISTRATION AND ELIGIBILITY
4.1 Anyone can browse listings on the website, however, to hire services through our website a customer must submit an online request or contact us through our phone lines.
4.2 After a client makes a request to hire services, we will check availability of the services and contact the client directly to confirm or deny the request.
4.3 If the services requested by the client are available, the client is required to pay the account by way of invoice/ account facility. In this regard, the client must comply with the terms and conditions in relation to payment.
5. ONLINE CUSTOMER ACKNOWLEDGEMENTS
5.1 When a client makes an online request to hire services, we retain complete discretion to determine if we will hire you the services as we see fit and without explanation to you.
5.2 A client acknowledges that the services may not be available on the days or at the time requested and we are under no obligation to provide the services at the time requested by you. We do not warrant that services will be available on the days or at the time in which you wish to hire them.
5.3 You acknowledge that in the event we are unable to provide services, the Supplier may in its discretion cancel the order despite the order being accepted by us. If we cancel the or services, the client will be provided with a refund. We will not be responsible for any loss or damage arising out of the cancellation.
5.4 In order for an online order to be considered to commence on the following
day, an order must be placed by 2pm on the business day before the proposed commencement date.
5.5 We cannot guarantee that services will be provided on weekends and or public holidays or that Supplier will review or process a request submitted on a weekend and or public holiday.
5.6 Each client must provide accurate information when they make a quotation request and agrees to keep this information accurate, current, and complete.
5.7 We reserve the right to cancel or suspend our services If the information that has been provided by the client be inaccurate or false.
6. SERVICES
6.1 The Services are as described on the Price Lists, invoices, quotations, work authorisation, hire schedule or any other work commencement forms provided by the Supplier to the Customer.
6.2 The parties acknowledge that the Supplier may supply Services or a combination of Services to the Customer.
6.3 The Customer agrees that it does not rely on the information, skill, or judgment of the Supplier in relation to the suitability of the Services for a particular
purpose. Any advice, recommendation, information or assistance provided by the Supplier in relation to the Service is provided without any liability by the Supplier whatsoever.
6.4 The Customer agrees that the Supplier relies on the instructions, directions, information, skill and judgement provided to the Supplier by the Customer in order for the Supplier to provide the Services.
6.5 The Customer will have in place all necessary insurance for the provision Services to the Customer by the Supplier in order to cover any loss, damage or costs suffered or incurred by either the Customer or the Supplier as a result of the supply of the provision of Services.
6.6 If the Supplier is unable to provide the Services to the Customer, the Supplier may in its discretion supply alternative services to the Customer. If the alternative services are not suitable to the Customer, the Supplier will not be liable for any claims arising out of the Supplier’s inability to supply the Services or alternatives suitable to the Customer. This is in addition to the Supplier’s rights to decline to provide the Services to the Customer.
6.7 The Customer acknowledges that the Supplier may hire Services from a third party and in that event title to the
Services remains with that third party. The Customer agrees, upon reasonable notice, to allow that third party to access the location where the Services are located from time to time to inspect the Services. The Customer acknowledges and agrees that if the Supplier’s agreement with that third party terminates during the hire period for any Hired Services, unless otherwise agreed by the Supplier in writing any hire of Hired Services by the Supplier to the Customer under these Terms will automatically terminate and the Supplier may immediately recover possession of the Hired Services from the Customer.
The Supplier will not be liable to the Customer in any circumstance for any claim that the Customer may have, or for any loss or damage suffered, as a result of such termination.
6.8 The Customer acknowledges that the Supplier may immediately cancel any particular provision of Services to which these Terms apply at any time before the particular Services to which these Terms relates are provided by giving written notice to the Customer. The Supplier will not be liable for any loss or damage whatsoever arising from such cancellation.
6.9 If the Customer (or any entity related to the Customer) has contact with an employee of the Supplier through or in connection with the provision of Services, and thereafter employs or engages that employee during or within 12 months of those Services being performed, then the Customer agrees that it will pay to the Supplier a placement fee. The placement fee is calculated by reference to 10% of the employee’s anticipated remuneration with the Supplier. The Supplier can waive the placement fee in its absolute discretion.
7. HIRED SERVICES
If the provision of Services from the Supplier to the Customer includes Hired Services, then the following additional terms and conditions in this clause 7 apply:
7.1 The Supplier agrees to provide Labour Hired Services to the Customer for the hire period between the commencement date and the completion date being the hire period, and the Supplier will observe so far as practicable these dates, but cannot guarantee strict compliance as to the date and time, and will not be under any liability which by law cannot be excluded if the Customer’s requirements are not met.
7.2 The Customer must sign a hire schedule and such other documents as the Supplier may require in relation to the Hired Services.
7.3 Each hire schedule and such other documentation are not a separate contract but form part of these Terms between the Supplier and the Customer, together with any credit applications, guarantee or other contractual documents.
7.4 The Supplier may in its sole discretion determine that the off-hire date is when the Hired Services become off-hired and not at the end of any specified hire period. Otherwise, the Supplier may in its sole discretion, decide whether to accept return of the Hired Services before the end of the hire period. Such an acceptance does not alter the hire period and the Customer will remain liable for all Prices payable to the Supplier despite early return of the Hired Services.
7.5 The Customer must ensure the Hired Services are used for the purpose for which they was designed.
7.6 The Customer must properly attach any operating or safety signs supplied with the Hired Services and ensure that they are visible, legible and drawn to the attention of every person who works in the job site.
7.7 The Customer agrees to perform all necessary searches and checks to the site on which the Hired Services will be performed, including any “dial before you dig” search.
7.8 The Customer agrees to pay the cost of fuels and consumables in relation to the Hired Services provided by the Supplier and that are not returned to the Supplier by the Customer.
8. LABOUR HIRE
If the provision of Services from the Supplier to the Customer includes Labour Hire, then the following additional terms and conditions in this clause 8 apply:
8.1 The minimum Labour Hire period payable by the Customer is 4 hours.
8.2 The Customer will provide the Labour Hire with any specific tools, equipment and consumables so required to allow the performance of the work required of the Labour Hire unless the Customer requests the Supplier to inform the Labour Hire to provide their own specific tools, equipment and consumables. If so, additional charges will apply to the tools, equipment and consumables that the Supplier supplies via the Labour Hire to the Customer.
8.3 The Customer will provide no less than 8 hours notice of cancellation or notice of postponement to the Supplier. If such notification is made with less than 8 hours notice being given to the Supplier, a
minimum of 4 hours’ cost will be payable by the Customer.
8.4 In the event of inclement weather or any other emergency when a full schedule of work (8 hours) is not accomplished by the Labour Hire, a minimum of 4 hours’ cost will be payable by the Customer.
8.5 The Customer recognises that the Supplier makes every effort to maintain high standards of integrity and reliability among the Labour Hire. However, the Supplier does not accept responsibility for any claim, damage, expense or delay arising from any failure by
itself to provide the Customer with Labour Hire for all or part of a booking or from any lack of skill, negligence or misconduct in relation to the Labour Hire provided to the Customer.
8.6 The hourly rate for Labour Hire payable by the Customer must be agreed upon between the Supplier and the Customer, either verbally or in written format. Acceptance by the Customer of Services that include Labour Hire is deemed to also be acceptance of such reasonable Labour Hire hourly rate as determined by the Supplier in its sole discretion, where no explicit rejection, either verbally or written, of such hourly rates has been provided by the Customer. To be clear, the hourly rate of Labour Hire
will not be less than the hourly rate of pay that the Customer’s employees and/or contractors receive for performing the same or substantially similar work to that to be performed by the Labour Hire.
8.7 The Customer will charge the Supplier a penalty hourly rate, and the Supplier will pay that penalty hourly rate, where the Supplier is required to pay the Labour Hire assigned to the Customer a penalty hourly rate, in accordance with the following:
a) Monday to Friday, between 6am and 6pm
first 8 hours at the agreed upon rate;
b) Monday to Friday, between 6am and 6pm after 8 hours at 1.5 times the agreed upon rate;
c) Monday to Friday, between 6pm and 6am
first 8 hours at 1.5 times the agreed upon rate;
d) Monday to Friday, between 6pm and 6am after 8 hours at 2.0 times the agreed upon rate;
e) Saturday, first 2 hours at 1.5 times the agreed
upon rate;
f) Saturday, after 2 hours at 2.0 times the agreed upon rate; and
g) Sunday and public holidays, at 2.0 times the agreed upon rate.
8.8 The Customer must comply with all laws applicable to each site at which Labour Hire is utilised, including in relation to the property, plant and equipment made available by the Customer and those employees of the Customer who work with the Labour Hire. Without limiting the generality of this requirement, the Customer is responsible for all inspections, permits and approvals required by law and for ensuring that all plant and equipment made available by the Customer (including motor vehicles and machinery) is registered where required and meets all applicable standards required by law.
8.9 During the period of the Services, the Customer must have adequate insurance to cover loss or damage to the Customer’s property or the property of other persons including machinery, motor vehicles and other plant and equipment and death or personal injury (to the Customer’s personnel or any other person including the Labour Hire) caused or contributed to
by the Labour Hire whilst it is being provided to the Customer. To be clear, this
insurance must cover the Supplier and its Labour Hire.
8.10 The Customer will ensure that each Labour Hire person maintains a timesheet recording the number of hours worked, and when those hours were worked. The timesheet must be countersigned by the Customer’s authorised representative at the end of each week.
8.11 Whilst the Supplier will use all reasonable endeavours to meet the Customer’s requirements and ensure the quality of the Labour Hire, the Supplier is not liable for any loss or damage (including consequential loss or damage) arising from any negligence, dishonesty, carelessness or lack of skill of the Labour Hire.
8.12 To the extent that the Supplier’s liability cannot be limited as provided in these Terms, the Supplier’s liability is limited to the Supplier supplying the Services again or paying the actual market value cost of replacing the supply of the Services.
8.13 The Customer is responsible for the care and supervision of the Labour Hire whilst they are providing Services to the Customer.
8.14 The Customer is responsible for providing a safe and healthy workplace,
and safe systems of work, for the Labour Hire.
8.15 The Customer is responsible for the operation and/or use of any Hired Goods by the Labour Hire.
8.16 The Customer acknowledges and agrees that it will comply with all applicable occupational, health, safety, environmental and associated legislation, regulations and codes of practice.
8.17 The Customer acknowledges and agrees that it will provide a comprehensive structured site and job safety induction for the Labour Hire.
8.18 The Customer acknowledges and agrees that it will provide adequate instruction and training to the Labour Hire.
8.19 The Customer acknowledges and agrees that it will advise the Supplier prior to any change in the nature of the tasks undertaken, equipment operated, and chemicals (or other consumables) used by the Labour Hire.
8.20 The Customer acknowledges and agrees that it will adequately supervise the Labour Hire at all reasonable times.
8.21 The Customer acknowledges and agrees that it will promptly advise the supplier of any incidents and injuries involving the Labour Hire and assist in the rehabilitation of the Labour Hire injured at the Customers’ site by the provision of suitable alternative duties.
8.22 The Supplier may, from time to time, attend the Customer’s site for the purpose of carrying out occupational health and safety inspections, safety/toolbox meetings with the Labour Hire on site and the investigation of incidents and injuries.
8.23 The Customer is responsible for providing a workplace that complies with all other legal requirements relating to the work environment.
8.24 If any issue arises concerning the performance of any Labour Hire person or any potential or alleged misconduct of any Labour Hire person, the Customer must immediately advise a senior Supplier manager and the Customer must provide the Supplier with reasonable access to the Labour Hire person in question and reasonable co-operation to enable the Supplier to deal with the matter as the Supplier considers appropriate.
9. PRICING
AGREEMENT
9.1 The Prices of Services shall be indicated on any Price List, invoice,
quotation, delivery docket, hire schedule or other commercial form provided by the Supplier to the Customer in respect of Services supplied, plus any transportation, freight, postage, packaging, handling, insurance and GST (where applicable, GST will be charged at the appropriate rate at the date of invoice).
9.2 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that the taxes and duties are expressly included in any quotation given by the Supplier.
9.3 The Customer must immediately check all Prices, and any disputes in relation to those Prices must be communicated to the Supplier in writing within 7 days of the invoice date. In the event that no communication is received from the Customer within that 7 day
period, the Prices are deemed to be accepted by the Customer.
9.4 The Prices for Hired Services is calculated by multiplying the number of days or weeks in the hire period by the daily rate or weekly rate (as applicable),
whether or not the Hired Services are used in that period.
9.5 If a minimum hire period applies in relation to the Hired Services, then the minimum Prices payable for the Hired Services are those in respect of that period regardless of the off hire date.
9.6 The Supplier may charge additional costs for the Hired Services at the daily rate for periods during which the Hired Services are being delivered to or collected from the Customer or during which the Supplier is unable to deliver or collect the Hired Services through no fault of its own or during periods when the Hired Services are unavailable for hire by the Supplier due to damage caused by the Customer. The imposition of these additional costs does not mean that the Supplier agrees to extend the hire period for the Hired Services.
9.7 In relation to Services that include Labour Hire, the following applies:
a) All Prices include worker compensation insurance, public liability insurance, payroll tax and superannuation.
b) The Supplier will render invoices to the Customer for the Labour Hire at intervals as it sees fit upon receipt of any timesheets in respect of the
Labour Hire who have prepared those timesheets. The Customer agrees to pay such invoices in accordance with any payment terms identified on those invoices or these Terms.
c) All such invoices are a claim for payment under the Building and
Construction Industry Security of Payment Act 1999.
9.8 Where the Price of the Services has been quoted by the Supplier that Price shall be binding upon the Supplier provided that the Services are delivered
and/or provided to the Customer, and accepted by the Customer, within thirty (30) days of the invoice, quotation, delivery docket or other commercial form. The Customer agrees to pay those Prices.
9.9 Notwithstanding any prior acknowledgment by the Supplier of the Price of Services, the Prices specified for Services may at the Supplier’s option be subject to the Supplier’s own prices and charges in effect at the time of delivery. For example, the Supplier shall be entitled to alter the Price of Services in the invoice or Price as a consequence of currency fluctuations, taxes, customs duty or other government imposts. Further, the Supplier is entitled to revise its Prices and related charges without prior notice being given to the Customer. The Supplier may also revise its Prices and any related charges in circumstances where the Supplier incurs further costs or such charges as a result of non-disclosure of information by the Customer to the Supplier, unforeseen Customer site problems or incorrect physical dimensions, weights or distances given by the Customer and relied on by the Supplier.
10. ACCOUNT TERMS
10.1 Unless otherwise agreed in writing by the Supplier, the Customer shall pay for all Goods delivered at the time of delivery of the Services.
10.2 Unless otherwise agreed in writing by the Supplier, the Customer shall pay for all Services performed within 7 days of such performance.
10.3 At the Supplier’s sole discretion a non-refundable deposit may be required from the Customer.
10.4 The Customer shall not set off against the Price amounts due from the Supplier.
10.5 In the event that:
a) the Supplier retains possession or control of the Services; and
b) payment of the Price is due to the Supplier;
10.6 The Supplier will be entitled to set off against any money owing to the Customer amounts owed to the Supplier by the Customer on any account whatsoever.
10.7 Payment for Services must be made by cash, or by cheque, or by bank cheque, or by direct credit, or by credit card, or by any other method as agreed to between the Customer and the Supplier. Payments will be applied to outstanding invoices of the Customer at the sole discretion of the Supplier. The Supplier reserves the right to charge a credit card handling fee at its discretion and at rates advised by the Supplier from time to time.
10.8 If the Customer does not pay the Supplier by the due date, the Customer shall pay interest on monies due, charged on a daily basis at 12% per annum from the date of the invoice until the actual date of payment. If the Customer has a credit account with the Supplier, the Supplier may debit the Customer for any interest that accrues at such other times that it chooses.
10.9 If the Customer does not pay the Supplier by the due date, the Customer shall pay to the Seller an administration fee which shall be the greater of $50.00 or 10.00% of the amount overdue on an unpaid invoice. The Customer and the Supplier agree that the administration fee is a reasonable liquidated cost of administering an abnormal payment and the Supplier may debit the Customer at such other times that it chooses for such administration fees.
10.10 The Customer shall pay any legal costs (on a solicitor/Customer indemnity basis), stamp duties and other expenses payable on these Terms or any credit application, guarantee or other security documents to the Customer for payment of the Price and the Supplier has not received the Price for the Goods, then whether property in or title to the Goods has passed to the Customer or has remained with the Supplier, the Supplier may dispose of the Goods and may claim from the Customer any loss to the Supplier on such disposal.
11. INTELLECTUAL PROPERTY
11.1 Where the Supplier has designed, drawn, written, prepared, manufactured or hired Goods for the Customer, then the copyright (or any other attaching intellectual property right) in those designs and drawings, prototypes, productions, documents and Goods shall remain vested in the Supplier, and shall only be used by the Customer at the Supplier’s discretion.
Where the Customer has supplied drawings, designs or concepts for Goods to be supplied by the Supplier, the Customer warrants that all designs or instructions provided to the Supplier will not cause the Supplier to infringe any
patent, registered design or trademark in the execution of the Customer’s order, and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
12. DELIVERY OF SERVICES
12.1 Services will be delivered or deemed to be delivered when they are delivered to the delivery place nominated by the Customer, included to any third party’s address. If no such address is nominated then delivery will be deemed to occur at the time when the Goods are ready for collection at the Supplier’s premises. The Supplier will endeavour to deliver the Goods on or before the Quoted Date. The Customer must ensure that there is an authorised person available to accept the Goods upon delivery.
12.2 The Customer recognises that the Supplier is not a common carrier and does not accept the obligation as such. Therefore the Supplier may refuse the handling, lifting and/or carriage of Goods, including Hired Goods, for any person in its sole discretion and without being bound to give reason to the Customer for such refusal.
12.3 The Customer shall pay to the Supplier packing, crating and delivery charges in accordance with the Supplier’s current rates, as at the date of dispatch. If there is no current rate, then a reasonable delivery charge shall be paid by the Customer.
12.4 The Supplier reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Customer within 14 days of a request by the Supplier for such information.
12.5 The Customer authorises the Supplier to deliver Goods to the place nominated by the Customer and to leave the Good at such place whether or not any
person is present to accept delivery. The Supplier shall not be liable on any basis whatsoever for loss suffered by the Customer after delivery of the Goods to the nominated delivery place.
12.6 The Supplier shall not be obliged to obtain a signed receipt or other acknowledgement from any person at the nominated place for delivery but if a signed receipt or other acknowledgement is obtained from someone believed by the Supplier to be authorised by the Customer to sign or otherwise take delivery, then such signed receipt or other acknowledgement shall be conclusive evidence of the Customer’s acceptance of the Goods delivered.
12.7 Any notified times for delivery are estimates only and the Supplier shall not be liable to the Customer for any failure to deliver or for delay in delivery of Services occasioned by strike, lockout or other industrial dispute, shortage of stock, shortage of labour, lack of skilled labour, delays in transit, fire, flood, hostility, civil commotion or any other cause whatsoever whether or not beyond the control of the Supplier.
12.8 The Customer shall not be relieved of any obligation to accept or pay for Services by reason of any delay in delivery.
12.9 The Supplier reserves the right to deliver Services by instalments and each instalment shall be deemed to be sold under a separate contract. Failure to deliver any instalment or deliver any instalment on time shall not be a repudiation of the contract and will not entitle the Customer to determine the contract in whole or in part.
12.10 The Supplier shall not be liable to the Customer for any loss or damage attributable to failure by the Supplier to deliver the Services.
12.11 Where the Supplier cannot access the Customer’s address to deliver the Services, the Services shall be delivered and left as close as practicable to the Customer’s address. Or in the event the Customer requests the Supplier to enter a property to deliver the Services, then the Supplier accepts no responsibility for any damage caused by the Supplier in doing so.
12.12 Unless agreed otherwise in writing, prior to delivery, the unloading of Services is the Customer’s responsibility. The Supplier is not responsible for any damage resulting from the unloading of Services by the Customer, or by anyone on its behalf.
12.13 In relation to Hired Services:
a) The Customer agrees that it is their responsibility to collect and return the Hired Services from and to the Supplier. The Customer must arrange for labour necessary to load and unload the Hired Services from any delivery vehicle. If the Customer or its authorised persons are not at the delivery site the Supplier may elect to unload the Hired Services which will be at the Customer’s risk from the time of delivery.
b) The Customer agrees that if the Supplier agrees to collect the Hired Goods from the Customer’s premises, the Hired Goods must be left in an appropriate, easily identifiable and accessible area and the Supplier will not be deemed to have accepted return of the Hired Goods in good repair and condition until such time as the Hired Goods have been fully
inspected by the Supplier at its depot following such collection.
13. PROPERTY AND RISK
13.1 The Services shall be at the sole risk of the Customer as soon as they are dispatched from the Supplier’s premises.
13.2 The Supplier may mark or label the Goods to identify the Goods in any manner which the Supplier considers appropriate.
13.3 At no time does Property in and title to Hired Services ever pass to the Customer.
13.4 Property in and title to Services being sold to the Customer (i.e. excluding Hired Goods) will not pass to the Customer until such time as the Price and all other amounts owed to the Supplier by the Customer have been paid for in full and the Customer has complied with these Terms and until then:
a) the Customer will hold the Services as trustee and agent for the Supplier;
b) the Services must be stored separately and in a manner enabling them to be identified as Services of the Supplier and cross-referenced to particular invoices and the Customer acknowledges that if it should process or mix the Services with other products or items such that the Services are no longer separately identifiable then the Customer and the Supplier will be owners in common of the new product;
c) the Customer may sell the Services in the ordinary course of its business as trustee and agent of the Supplier and will hold the proceeds of sale in a separate account on trust for the Supplier and account to the Supplier for those proceeds; and
d) the Supplier may require the Customer to return the Services to the Supplier or its authorised
13.5 If any of the Services are damaged or destroyed prior to property in and title to the Services passing to the Customer, the Customer hereby assigns to the Supplier all insurance proceeds payable to the Customer for the loss or damage of the Services. The Customer shall at the time that it makes any claim on an insurer in connection with the loss or damage to the Services notify that insurer of the assignment of rights pursuant to this clause.
13.6 Unless agreed in writing by the Supplier, the Supplier will not accept any return of Services that are being sold to the Customer.
13.7 Services that are accepted for return by the Supplier will attract a charge to the Customer to cover restocking and repackaging charges. The amount of this charge will be determined by the Supplier but will be not less than 15% of the price of the Services. Such charge shall be deducted from the amount or credit allowed. The original invoice number and a copy of the original invoice must accompany all Goods returned to the Supplier. The Supplier, in its sole discretion, may request immediate payment of this charge by the Customer upon return of the Services.
13.8 The Customer shall insure the Services (including any Hired Goods) against theft or any damage until such Services have been paid for, or until they are sold by the Customer, or until the Hired Services have been returned to the Supplier, whichever occurs first, and the Supplier will be entitled to call for details of the insurance policy. If the Customer does not insure the Services or fails to supply details of its insurance policy the Customer will reimburse the Supplier for the cost of any insurance which the Supplier may reasonably arrange in respect of the Services supplied to the Customer.
13.9 The Customer agrees to store the Services in good and serviceable condition, and in such a manner as to identify that the Services remain the property of the Supplier until the conditions in clause 11.4 are met, and the Customer agrees to keep complete records as to the use and sale to third parties of such Services.
14. CLAIMS FROM CUSTOMER
14.1 Subject to clause 12.5, all claims by the Customer relating to failure by the Supplier to comply with an order of the Customer whether due to shortfall, defect, incorrect delivery or otherwise must be made by written notice to the Supplier within seven (7) days of the date of delivery. If the Customer fails to provide such notice within seven (7) days then the Customer shall be deemed to have accepted the Services and shall not be entitled to make any claim against the Supplier.
14.2 These Terms shall not exclude, or limit the application of any provisions of any statute including any implied condition or warranty the exclusion of
which would contravene any statute (including the Australian Consumer Law)
or cause any part of this clause 14 to be void or unenforceable. To the extent permitted by law all conditions, warranties and undertakings are expressly excluded.
14.3 Unless the Services supplied by the Supplier are of a kind ordinarily acquired for domestic household or personal use or consumption, the Supplier’s liability under clause 14.2 for breach of a non-excludable condition or warranty is limited at the Supplier’s option, to any one of the following:
a) in the case of Services:
(1) the replacement of the Services or the supply of equivalent Services;
(2) the repair of the Services;
(3) the payment of the cost of providing replacement Services or of acquiring equivalent Services; or
(4) the payment of the cost of having the Services repaired.
b) in the case of Services:
(1) the supplying of the Services again; or
(2) the payment of the cost of having the Services supplied again.
14.4 Subject to clause 14.2 the Supplier shall not be liable for any direct or indirect
SIMPLY WORKFORCE CO – TERMS AND CONDITIONS ABN: 35 662 385 113
loss whatsoever including consequential loss, loss of profits, loss of opportunity or loss of use.
14.5 The Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
14.6 The Customer failing to properly maintain or store any Services
a) The Customer using the Services for any purpose other than that for which they were designed;
b) The Customer continuing the use of any the Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
c) The Customer failing to follow any instructions or guidelines provided by the Supplier; or
d) Fair wear and tear, any accident or act of God.
15. GST
15.1 In this clause the expressions “GST”, “Input tax credit”, “tax invoice”, “recipient” and “taxable supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.
15.2 With the exception of any amount payable under this clause, unless otherwise expressly stated all amounts stated to be payable by Customer under these Terms are exclusive of GST.acknowledgement shall be conclusive evidence of the Customer’s acceptance of the Goods delivered.
15.3 If GST is imposed on any supply made under or in accordance with these Terms, the recipient of the taxable supply must pay the Supplier an additional amount equal to the GST payable on or for taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply subject to the provision of a tax invoice.
16. DEFAULT
BYCUSTOMER
ANDTERMINATION
16.1 In the event of:
a) any default or failure by the Customer in making due and punctual payment to the Supplier of any moneys owing by the Customer:
b) an administrator, liquidator or provisional liquidator is appointed in respect of the Customer;
c) a receiver and manager, administrator or controller is appointed in
respect of any assets or groups of assets of the Customer;
d) the Customer goes into bankruptcy or is wound up;
e) the Customer becomes, admits in writing that it is, or is declared by a court to be unable to pay its debts as and when they fall due;
f) there is a breach by the Customer of any of these Terms,
g) the Customer offers the Services for sale through the internet, then all monies payable by the Customer to the Supplier shall become immediately due and payable notwithstanding the due date of payment shall not have expired, and the Supplier may without prejudice to any other rights it may have do any or all of the following:
(1) withdraw any credit facilities which may have been extended to the Customer;
(2) withhold any further deliveries of Goods;
(3) in respect of Services already delivered onto the Customer’s premises enter onto those premises and recover and resell the Services;
(4) recover from the Customer the cost of materials or Services acquired for the purposes of future delivers;
(5) any discount, markdown, reduction or special price, previously offered by the Supplier to the Customer may be withdrawn, or cancelled, and the Price shall become the Supplier’s standard Price as at the date of the original sale; and/or
(6) cease to supply Services (Labour Hire) to the Customer.
16.2 The Customer agrees to pay to the Supplier all losses, damages, costs and other expenses whatever suffered by the Supplier as a result of any Customer event noted in clause 16.1
17. TRUST ANDTRUSTEES
17.1 Where the Customer is a trustee:
a) the Customer agrees to produce a stamped copy of the trust deed (with all amendments) and accounts of the trust if and when requested by the Supplier.
b) the Customer warrants that it has full power and authority to enter into this agreement on behalf of the trust and that it shall be bound by these Terms both
SIMPLY WORKFORCE CO – TERMS AND CONDITIONS ABN: 35 662 385 113
personally and in their capacity as trustee irrespective of whether or not it discloses to the Supplier that it is a trustee at the time of entering into any credit agreement with the Supplier.
c) the Customer warrants that the trust has agreed to indemnify the trustee in respect of all liability incurred by the trustee pursuant to this agreement.
d) the trustee of the trust acknowledges that it has entered into this agreement in its capacity as trustee of the trust and also in its own capacity.
18. COVENANTS BYTHECUSTOMER
18.1 Fixed and Floating Charge
a) in consideration of the Supplier selling or hiring to the Customer Goods on credit, the Customer as beneficial owner does hereby charge all and every undertaking and all of its assets (including rights, titles and interests) of whatsoever nature and wheresoever situate both present and future with the payment to the Supplier of all moneys now or hereafter to become owing or payable to the Supplier by the Customer or enforcement of these Terms.
b) the charge hereby created (“the Charge”) shall operate as:
(1) a fixed charge as regards to freehold and leasehold property, uncalled capital, engines, machinery, plant, stock, books of account, debts, vouchers and other documents relating in any way to the business transactions of the Customer and all securities negotiable or otherwise, shares and
documents evidencing title to or right to possession of any property and whether or not deposited with the Supplier by the Customer and the property mentioned in any such documents;
(2) as a floating charge in respect of all other assets hereby charged.
c) the Customer shall immediately upon demand made on it by the Supplier execute in favour of the Supplier a deed of fixed and floating charge containing such covenants as the Supplier may reasonably require including without limitation the provisions of the Supplier’s standard form of deed of fixed and floating charge.
18.2 Mortgage
a) the Customer shall immediately upon demand being made upon it by the Supplier execute in favour of the Supplier as mortgagee, a mortgage payable on demand in registrable form over all or any part of the freehold or leasehold land of
SIMPLY WORKFORCE CO – TERMS AND CONDITIONS ABN: 35 662 385 113
the Customer referred to in Clause 16.2 hereof (“the Mortgage”) containing such covenants as the Supplier may require including without limitation the covenants contained in Memorandum 2447323 presently filed in the New South Wales Land Property Information in respect of real property situate in New South Wales or in the case of real property in other jurisdictions, the provisions of the Supplier’s standard form of mortgage.
b) the Supplier shall be entitled to lodge a caveat in respect of the agreement to grant a mortgage contained in Clause 18 or the Mortgage or in respect of all or any of the real property of the Customer charged to the Supplier under Clause 18.1. The Customer shall not object to the lodgement of the said caveat or take any steps to have any such caveat removed from the Land Titles Office register.
18.3 Future Assurances
At the cost of the Customer, the Customer shall from time to time at the written request of the Supplier execute any deed, dealing, assurance or other document which the Supplier shall in its absolute discretion require the Customer to execute and do all such other acts, matters and things as the Supplier shall consider reasonable for the purpose of preserving, perfecting or protecting the
Charge and the Mortgage or more effectively securing the powers, remedies, rights, declarations and authorities of the Supplier under the Charge and/or the Mortgage.
18.4 The Customer indemnifies the Supplier from and against all of the Supplier’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising the Supplier’s rights under this clause 18.
18.5 The Customer herby acknowledges and agrees that the Supplier has a lien over all Goods in its possession belonging to the Customer to secure payment of any or all amounts outstanding from time to time.
18.6 Power of Attorney
The Customer hereby irrevocably appoints the Supplier and every authorised officer of the Supplier jointly and each of them severally the attorney of the Customer for the purpose of doing either in the Customer’s name or in the name of the attorney and in either cases as the Customer’s act and deed all such acts, matters and things as the attorney from time to time considers necessary or expedient for the purpose of carrying into effect all the powers and authorities herein contained and without limiting the power and authority:
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a) do any act including the execution of the Charge and/or the Mortgage and the execution of such documents as may be necessary to register the Charge and/or the Mortgage in the Customer’s name as mortgagor pursuant to this application;
b) to execute and deliver on behalf of the Customer a lease of the said freehold or leasehold land of the Customer or any part thereof for such period as the Supplier may think fit;
c) to bring, proceed with, defend or compromise any legal proceedings on behalf of the Customer in connection with the said land or property the subject of the Mortgage and to execute and appeal from any judgment or judgments in connection therewith.
18.7 The Customer warrants that all statements made and documents provided in connection with this agreement and all representations that the Customer has made or may make during the Terms to the Supplier are true and correct.
18.8 The Customer warrants that the credit account is required for the Customer’s business or commercial purposes and will not be used for personal, domestic or household purposes.
18.9 The Customer acknowledges that the Supplier has relied on the correctness of these warranties in approving the credit application and continues to rely on these warranties in it further dealings with the Customer.
19. PERSONAL PROPERTY SECURITIES ACT
2009 (PPSA)
19.1 In this clause:
a) financing statement has the meaning given to it by the PPSA;
b) financing change statement has the meaning given to it by the PPSA;
c) security agreement means the security agreement under the PPSA created between the Customer and the Supplier by these Terms; and
d) security interest has the meaning given to it by the PPSA.
19.2 Upon assenting to Terms in writing the Customer acknowledges and agrees that these Terms:}
a) constitute a security agreement for the purposes of the PPSA; and
b) create a security interest in:
(1) all Goods previously supplied (sold, hired or otherwise) by the Supplier to the Customer (if any); and
(2) all Goods that will be supplied (sold, hired or otherwise) in the future by the Supplier to the Customer.
19.3 The Customer undertakes to:
a) promptly sign any further documents and/ or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to:
(1) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(2) register any other document required to be registered by the PPSA;
(3) correct a defect in a statement referred to in clause 19.1(a) or 19.1 (b);
(4) comply with section 275 of the PPSA.
b) indemnify, and upon demand reimburse,
the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Supplier; and
e) immediately advise the Supplier of any material changed in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
19.4 The Supplier and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms.
19.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
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19.6 The Customer waives its rights as a grantor and/ or a debtor under sections 142 and 143 of the PPSA.
19.7 Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
19.8 The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 19.3 to 19.7.
19.9 The Customer must not dispose or purport to dispose of, or create or purport to create or permit to create any security interest in the Services other than with the express written consent of the Supplier. The Customer must not lease, hire, bail or give possession (“sub-hire”) of the Services to anyone else unless the Supplier (in its absolute discretion) first consent in writing. If the Supplier does consent any such sub-hire must be in writing in a form acceptable to the Supplier and must be expressed to be subject to the Supplier’s rights under these Terms. The Customer may not vary a sub-hire without the prior written consent of the Supplier (which may be withheld in its absolute discretion).
19.10 The Customer must ensure that the Supplier is provided at all times with up-to-date information about the sub-hire including the identity of the sub-hiree, the
terms of and state of accounts and payment under the sub-hire and the location and condition of the Services.
19.11 The Supplier must take all steps including registration under the PPSA as may be required, to ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPSA, enabling the Customer to gain (subject always to the Supplier’s rights) first priority (or any other priority agreed to by the Supplier in writing) for the security interest, and enabling the Customer and the Supplier to exercise the Customer respective rights in connection with the security interest.
19.12 To assure performance of the Customer’s obligations under this clause the Customer hereby gives the Supplier an irrevocable power of attorney to do anything the Supplier considers necessary to protect its interest in the Services. The Supplier may recover from the Customer the cost of doing anything under this clause, including registration fees.
20. LIMITATION OF LIABILITY ANDINDEMNITY
20.1 The Supplier agrees that all Services shall be at the Customer’s sole risk and the Supplier will not be liable for any loss, damage or injury that the Customer may incur or that may arise from any cause whatsoever including any fault or other defect in provision of Services.
20.2 The Customer agrees that the Supplier is not liable for any special, indirect or consequential loss arising in any way in respect of the Services or their use, or in respect of any Services provided and this exclusion of liability applies whether that loss or liability arises at general law or under these Terms and whether or not including loss or liability arising as a consequence of negligence.
20.3 The Supplier is not liable for any loss or damage to any property or for death or personal injury (to the Customer’s personal or any another person) caused or contributed to by the Labour Hire (whether by negligence or otherwise) during the provision of any Services to the Customer.
20.4 The Customer accepts full responsibility for, and indemnifies the Supplier against all claims in respect of any injury to persons, or damage to property, arising out of the use of the Services however arising, whether from the Customer’s negligence or that of the Supplier and without limiting the foregoing whether or not the Services were being operated or transported by an agent or servant of the Supplier’s or any other person for whose acts the Supplier may be held to be responsible for.
20.5 The Customer agrees to indemnify the Supplier for any costs or loss or damage incurred in recovering Services, whether those Services were abandoned, unlawfully detained or otherwise not returned to the Supplier in accordance with these Terms.
20.6 Without limiting the Supplier’s liability at law in tort, the Customer agrees to indemnify, and keep indemnified, the Supplier and its directors, officers, agents and assigns against any liability for any claims made against the Supplier, or employees, arising out of or in connection with any breach by the Customer of this application or these Terms, or any loss, damage or injury suffered by a third party, caused by any negligence, or deliberate act, by the Labour Hire in the course of performing Services for the Customer.
20.7 Where the Supplier gives advice, recommendations, information, assistance and/or service to the Customer regarding the suitability or purpose of the Services, or in connection with the design, delivery times, dimensions, installation or use of the Services, then it is given in good faith and the Supplier shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on any such advice, recommendations, information, assistance and/or service.
21. ACKNOWLEDGMENT
21.1 Each of the Customer and the Directors hereby
acknowledge, affirm and agree that:
a) this application has been provided to the Supplier to enable each of the Customer and the Directors to take it away and read it so that they may fully understand and comprehend the terms conditions and provisions contained herein;
b) they have read, fully understand and comprehend the terms, conditions and provisions contained in this application;
c) they have been advised by the Supplier prior to the execution of this application that a copy of this application form containing the forms of this application has been provided to the Customer and each Director to enable them to obtain independent legal advice and they have take such advice as to us has seemed appropriate;
d) they have full power and authority to enter into this agreement;
e) this agreement is signed and delivered as a Deed; the Supplier will rely on all information given to the Supplier by the Customer and the Directors and this information is true and correct.
22. USE OF ONLINE ACCOUNT
22.1 The Supplier reserves the right to refuse to supply Services to any client and to terminate a client’s account, including a client’s online account and registration.
22.2 If it becomes known to the Supplier that there are any fraudulent activities occurring through the use of the website, the Supplier reserves the right to immediately terminate any account involved in such fraudulent activity and if necessary contact the relevant authorities
SIMPLY WORKFORCE CO – TERMS AND CONDITIONS ABN: 35 662 385 113
and provide all necessary assistance to law enforcement agencies.
22.3 The Supplier reserves the right to terminate a user’s account, including any online account should the user in the Supplier’s views committed a breach of these terms and conditions.
23. USER GENERATED CONTENT
23.1 A client or guest user after renting a good and or service is requested to provide feedback on an optional basis and if they provide feedback this will be published on the website.
23.2 By making available on the site, any User generated content or intellectual property, the author acknowledges that they grant to the Supplier a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to the content that has been generated and intellectual property. This includes granting the Supplier with the right to use, copy, adapt, modify, distribute, licence, sell, transfer, publicly displace, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such user content ads intellectual property on the website.
23.3 The User is solely responsible for all user content and intellectual that it makes available through the site and in doing so warrants that:
I. It is either the sole and exclusive owner of all the user content and intellectual property that it generates on the site, or has the rights, licences, consents and releases that are necessary to grant to the Supplier the rights in such user content or intellectual property;
II. He or she will not submit any content that is false, inaccurate or misleading, infringes, or violates or third party’s patent, trademark, trade secret, copyright, moral rights or other intellectual property or rights
of publicity or privacy or result in the violation of any applicable law or regulation;
III. That violates any law, stature or regulation;
IV. That could be considered to be defamatory, hateful, libelous, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation;
V. The Supplier may at its sole discretion remove any content generated by a user which is offensive, inappropriate or a breach of these terms and conditions;
VI. Content for which you have been compensated or granted any consideration by a third party;
VII. Will not publish any content that contains computer viruses, worms or other potentially damaging programs or files;
VIII. Material that contains any information that includes a reference to other websites, addresses, contact information including email addresses and phone numbers.
23.5 You agree to indemnify the Supplier against all claims, demands and damages arising out of a breach of your representations and warranties set forth above or your violation of any law or the rights of any third party.
24. ACKNOWLEDGMENT 24.1 Each of the Guarantor/s hereby acknowledge,
affirm and agree that he/she:
a) Had an opportunity to and sought independent
legal advice before entering into the Guarantee and Indemnity;
b) The nature of the Guarantee and Indemnity;
c) The liability which the Guarantor would incur by executing the Guarantee and Indemnity; and
d) The manner in which such liability could be enforced.
25. ASSIGNMENT AND NOVATION
25.1 The Supplier may at any time assign, novate or otherwise dispose of or deal with its rights and obligations under these this Guarantee by notice in writing to the Guarantor/s. The Guarantor/s agrees that any order for the purchase of Goods submitted by the Customer to the Supplier after the date of a notice of assignment will be deemed to be an acceptance of such assignment.
26. LAWS TO GOVERN PROVISIONS OF THE GUARANTEE AND INDEMNITY
26.1 This Guarantee and Indemnity shall be governed by and construed in accordance with the laws of New South Wales.
