TERMS OF CONDITIONS AND TRADE

Definitions

1.1 “Absolute” shall mean Absolute Smart Homes Pty. Ltd. its successors and assigns or any person acting on behalf of and with the authority of Absolute Smart Homes Pty. Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Absolute to the Client.

“Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
“Goods” shall mean Goods supplied by Absolute to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Absolute to the Client.
“Services” shall mean all Services supplied by Absolute to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
“Price” shall mean the price payable for the Goods as agreed between Absolute and the Client in accordance with clause 4 of this contract.

The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

Acceptance
1. Any instructions received by Absolute from the Client for the supply of Goods and/or the Client’s acceptance of Goods or services supplied by Absolute shall constitute acceptance of the terms and conditions contained herein.
2. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3. Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Absolute.
4. The Client shall give Absolute not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Absolute as a result of the Client’s failure to comply with this clause.
5. Goods or services are supplied by Absolute only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

Price And Payment
1. At Absolute’s sole discretion the Price shall be either:
  1. As indicated on invoices provided by Absolute to the Client in respect of Goods supplied; or
  2. Absolute’s quoted Price (subject to clause 4.2) which shall be binding upon Absolute provided that the Client shall accept Absolute’s quotation in writing within thirty (30) days.
2. Whilst Absolute shall endeavour to adhere to any quotation accepted by the Client, Absolute reserves the right to change the Price in the event of a variation to Absolute’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties beyond the reasonable control of Absolute) will be detailed in writing and charged for on the basis of Absolute’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3. At Absolute’s sole discretion a deposit may be required.
4. Absolute may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed.
5. At Absolute’s sole discretion:
  1. payment shall be due on delivery of the Goods; or
  2. payment shall be due on completion of the works; or
  3. payment shall be due before delivery of the Goods; or
  4. payment for approved Clients shall be made by instalments in accordance with Absolute’s payment schedule.
6. Time for payment for the Goods shall be of the essence and will be as soon as completion of the job or project has occurred. For extended jobs weekly invoices shall be paid on receipt of the invoice. For new customers credit may be arranged pending conditions after the successful completion and payment of three projects.
7. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Absolute.
8. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

Delivery Of Goods
1. At Absolute’s sole discretion delivery of the Goods shall take place when:
  1. the Client takes possession of the Goods at Absolute’s address; or
  2. the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Absolute or Absolute’s nominated carrier).
2. At Absolute’s sole discretion the costs of delivery are included in the Price.
3. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Absolute shall be entitled to charge a reasonable fee for redelivery.
4. Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5. Absolute may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6. The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
  1. such discrepancy in quantity shall not exceed five percent (5%); and
  2. The Price shall be adjusted pro rata to the discrepancy.
7. The failure of Absolute to deliver shall not entitle either party to treat this contract as repudiated.
8. Absolute shall not be liable for any loss or damage whatever due to failure by Absolute to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Absolute.

Risk
1. If Absolute retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Absolute is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Absolute is sufficient evidence of Absolute’s rights to receive the insurance proceeds without the need for any person dealing with Absolute to make further enquiries.
3. Where the Client has supplied materials for Absolute to complete the works, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Absolute shall not be responsible for any defects in the works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client and any repairs or alterations to the either those materials or the works shall be in addition to the Price.
4. Whilst Absolute will take all care during repair and installation works, Absolute shall not accept any contra costs or deduction of the Price for items, fixtures, walls or any other property of the Client damaged during the works, without the prior approval of Absolute to the Client’s written request (which must state the relevant reference number). In the event that retentions are made with the approval of Absolute, then Absolute reserves the right to treat such retentions as placing the Client’s account into default.
5. Where data or materials are supplied by the client and such data or materials are found to be unsatifactory to either the client or Absolute within the creation of the required finished product , the time and materials taken to repair or change such deficencies shall be charged to the client as additional hours and materials. The client shall be advised of such deficencies prior to any work commencing or replacement of any materials being installed.

Underground Locations
1. Prior to Absolute commencing the works the Client must advise Absolute of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, Telstra cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
2. Whilst Absolute will take all care to avoid damage to any underground services the Client agrees to indemnify Absolute in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.

Access
1. Absolute must be given uninterrupted access to the site to undertake the works or services.
2. It is the Clients responsibility to provide Absolute, while we are at the site, with adequate access to available water, electricity, toilet and washing facilities.

Title
1. Absolute and Client agree that ownership of the Goods shall not pass until:
  1. the Client has paid Absolute all amounts owing for the particular Goods; and
  2. The Client has met all other obligations due by the Client to Absolute in respect of all contracts between Absolute and the Client.
2. Receipt by Absolute of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Absolute’s ownership or rights in respect of the Goods shall continue.
3. It is further agreed that:
  1. where practicable the Goods shall be kept separate and identifiable until Absolute shall have received payment and all other obligations of the Client are met; and
  2. Until such time as ownership of the Goods shall pass from Absolute to the Client Absolute may give notice in writing to the Client to return the Goods or any of them to Absolute. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
  3. Absolute shall have the right of stopping the Goods in transit whether or not delivery has been made; and
  4. if the Client fails to return the Goods to Absolute then Absolute or Absolute’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
  5. the Client is only a bailee of the Goods and until such time as Absolute has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Absolute for the Goods, on trust for Absolute; and
  6. the Client shall not deal with the money of Absolute in any way which may be adverse to Absolute; and
  7. the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Absolute; and
  8. Absolute can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
  9. Until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Absolute will be the owner of the end products.

Defects
1. The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Absolute of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Absolute an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Absolute has agreed in writing that the Client is entitled to reject, Absolute’s liability is limited to either (at Absolute’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
2. Goods will not be accepted for return other than in accordance with 10.1 above.

Warranty
1. For Goods not manufactured by Absolute, the warranty shall be the current warranty provided by the manufacturer of the Goods. Absolute shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
2. Absolute’s individual warranty on goods and services applies for a twelve month period from the date of installation of such goods and services.

12. Intellectual Property

Where Absolute has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Absolute, and shall only be used by the Client at Absolute’s discretion.
The Client warrants that all designs or instructions to Absolute will not cause Absolute to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Absolute against any action taken by a third party against Absolute in respect of any such infringement.

13. Default & Consequences of Default

Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at Absolute’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Absolute.
If the Client defaults in payment of any invoice when due, the Client shall indemnify Absolute from and against all costs and disbursements incurred by Absolute in pursuing the debt including legal costs on a solicitor and own client basis and Absolute’s collection agency costs.
Without prejudice to any other remedies Absolute may have, if at any time the Client is in breach of any obligation (including those relating to payment), Absolute may suspend or terminate the supply of Goods and services to the Client and any of its other obligations under the terms and conditions. Absolute will not be liable to the Client for any loss or damage the Client suffers because Absolute has exercised its rights under this clause.
If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
Without prejudice to Absolute’s other remedies at law Absolute shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Absolute shall, whether or not due for payment, become immediately payable in the event that:
1. any money payable to Absolute becomes overdue, or in Absolute’s opinion the Client will be unable to meet its payments as they fall due; or
2. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
3. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

Security And Charge
1. Invoices or payment of invoices shall not be transferred to a third party without the written permission of Absolute Smart Homes Pty. Ltd.
2. Despite anything to the contrary contained herein or any other rights which Absolute may have howsoever:
  1. where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Absolute or Absolute’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Absolute (or Absolute’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
  2. should Absolute elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Absolute from and against all Absolute’s costs and disbursements including legal costs on a solicitor and own client basis.
  3. The Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Absolute or Absolute’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.

Cancellation
1. Absolute may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Absolute shall repay to the Client any sums paid in respect of the Price. Absolute shall not be liable for any loss or damage whatever arising from such cancellation.
2. In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Absolute (including, but not limited to, any loss of profits) up to the time of cancellation.

Privacy Act 1988
1. The Client and/or the Guarantor/s agree for Absolute to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Absolute.
2. The Client and/or the Guarantor/s agree that Absolute may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
  1. to assess an application by Client; and/or
  2. to notify other credit providers of a default by the Client; and/or
  3. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
  4. To assess the credit worthiness of Client and/or Guarantor/s.
3. The Client consents to Absolute being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
4. The Client agrees that personal credit information provided may be used and retained by Absolute for the following purposes and for other purposes as shall be agreed between the Client and Absolute or required by law from time to time:
  1. provision of Goods; and/or
  2. marketing of Goods by Absolute, its agents or distributors in relation to the Goods; and/or
  3. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
  4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
  5. Enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
5. Absolute may give information about the Client to a credit reporting agency for the following purposes:
  1. to obtain a consumer credit report about the Client; and/or
  2. Allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

Unpaid Absolute’s Rights
1. Where the Client has left any item with Absolute for repair, modification, exchange or for Absolute to perform any other Service in relation to the item and Absolute has not received or been tendered the whole of the Price, or the payment has been dishonoured, Absolute shall have:
  1. a lien on the item;
  2. the right to retain the item for the Price while Absolute is in possession of the item;
  3. A right to sell the item.
2. The lien of Absolute shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.

Building and Construction Industry Payments Act 2004
1. At Absolute’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
2. Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.

General
1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
3. Absolute shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Absolute of these terms and conditions.
4. In the event of any breach of this contract by Absolute the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
5. The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Absolute.
6. Absolute may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
7. The Client agrees that Absolute may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Absolute notifies the Client of such change.
8. 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.
9. The failure by Absolute to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Absolute’s right to subsequently enforce that provision.
10. Absolute Home Automation shall take all steps to see that our employees work in a safe environment. Any harassment, aggressive behaviour or dangerous work practises by the client or their staff shall result in immediate removal of employees from the site. This shall be done without any penalties to Absolute and shall remain in force until the client can prove that the site shall operate within the Queensland Government (or similar ) work place laws.
11. Absolute shall , due to costs of travel , charge the nominated hourly rate for travel to and from the required premises in order to perform tasks required by client. Equipment brought to and collected from Absolute’s office for works or repair shall be charged zero travel times.
12. All equipment that requires testing and inspection prior to works performed, shall be invoiced at the times and charges required to perform such tests.

Notes
1. Absolute Smart Homes Pty. Ltd. is predominately as C Bus installer and repairer. Our company is also heavily involved in energy management and audio visual installations. Absolute does have electrical contractors and telecommunications and data licences. Electrical and data works are done as assistance to the client and are not the company’s core scope of works.
2. Preworks deposit of twenty five percent of quoted or estimated works are required prior to the commencement of all works and delivery supplies.
3. Absolute Smart Homes Pty. Ltd. itemizes all works and equipment supplied on quotes and invoices and all other items such as patching and painting , external contractor works or any other items required and that are not included in quotes or invoices shall be charged as addittional pricing to any quote or invoice.
4. All existing works are taken as being correct and stable in regards to their operation, voltage output and sine wave recordings. Unless otherwise noted in writing.
5. Absolute can not be held responsible for equipment or electrical faults that are present in other parts of the installation other than that which has been requested to be repaired by the client. To repair such works (if found ) shall be advised prior to further repairs works conducted and shall be charged as additional works items where requested. .