Terms & Conditions
These terms and conditions govern the supply of goods and services by YVSTC to the Customer, as further described below. Version: September 2023.
1. DEFINITIONS
In these Terms and Conditions capitalised terms have the meaning given to them in context, or otherwise as set out below:
Agreement means these Terms and Conditions, with any annexures, read together with each Purchase Order.
Australian Consumer Law means the law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Commencement Date means the date on which a Customer Credit Application is executed or the date on which the first Purchase Order is agreed between the parties, whichever is earlier.
Confidential Information means the terms of an Agreement and all information of a confidential or sensitive nature (including any Intellectual Property, trade secrets, and know-how), whether in writing or otherwise, of or concerning a party to an Agreement or its related entities that is provided or made accessible by one party to or for the other in contemplation of or in connection with an Agreement. Confidential Information will not include any information that is in the public domain or enters into the public domain through the performance of this Agreement or otherwise (other than through a breach of an Agreement).
Customer means any person YVSTC supplies with the Services. The Customer may be the party identified as such in a Purchase Order, Customer Credit Application, or any other document or agreement between the parties, any person to whom YVSTC is directed to deliver the Services, and any person who pays the Fees (jointly and severally).
Customer Credit Application means any agreement between YVSTC and the Customer that provides for the supply of the Services on credit, and any other document executed by the Customer or its agent, representative, officer, or director in connection with that agreement.
Customer Material means any and all material in the Customer’s possession or control that is relevant to providing, or reasonably requested by YVSTC for the purpose of providing, the Services, and as relevant to the Customer’s performance obligations includes all accesses, permissions, and approvals required to enable YVSTC to access and make use of the Customer Material.
Defect means, as the context requires: (a) a failure to deliver Services in accordance with the requirements of a Purchase Order; or (b) a defect or error in the Services that means they do not comply with a Purchase Order because of faulty material or workmanship, but does not include anything disclosed by YVSTC as a feature or limitation of the Services prior to acceptance of a Purchase Order, or anything trivial, insubstantial, or otherwise caused by the Customer.
Fees means the fees and charges payable by the Customer under this Agreement or the Customer Credit Application including but not limited to the fees and charges (including any required deposit) set out in any Purchase Order.
Losses means any direct costs, losses, damages, or expenses of any nature whatsoever, and any claims, actions, or demands in relation to any of the foregoing, howsoever caused, and includes consequential or indirect loss (including but not limited to loss of income, profits or reputation) unless indicated otherwise in context.
Purchase Order means any document agreed between the parties in writing which describes the Services to be supplied by YVSTC and the Fees to be paid by the Customer as consideration for those Services and may (without limitation) be in the form of an invoice or quote provided by YVSTC and accepted by the Customer, or emails exchanged between the parties.
Services means, generally, any services and/or goods provided by YVSTC to or on behalf of the Customer under these Terms and Conditions and, specifically, the services described in a Purchase Order.
Term means, in respect of a Purchase Order, the period from the acceptance of that Purchase Order to its completion or termination in accordance with this Agreement and, in respect of this Agreement, the period from the Commencement Date to termination under clause 6.
YVSTC means Yarra Valley Septic Tank Cleaning Pty Ltd (ABN 21 006 483 030).
2. APPOINTMENT
2.1 The Customer appoints YVSTC to provide the Services during the Term. Subject to payment of the Fees, YVSTC agrees to provide the Services in accordance with this Agreement.
2.2 The particulars of the Services that YVSTC will provide are as described in a Purchase Order. The parties may have any number of Purchase Orders in place at the same time, and each Purchase Order will be read together with these Terms and Conditions, together forming this Agreement. A Purchase Order will take effect when agreed in writing by the parties, or when submitted by the Customer to YVSTC and accepted in writing by YVSTC. The Customer agrees that YVSTC may refuse to agree to a Purchase Order and may refuse to provide any requested Services for any reason whatsoever.
2.3 The Customer may raise a Purchase Order with YVSTC to request the supply of Services at any time during the Term. A Purchase Order will not be binding until accepted in writing by YVSTC. YVSTC will respond to a Purchase Order promptly and in accordance with any time frame otherwise agreed between the parties.
2.4 The Customer acknowledges and agrees that the appointment is non-exclusive and that YVSTC may be engaged by other Customers to provide goods or services (including goods or services similar to the Services) during the period of the appointment.
2.5 The Customer acknowledges that unless specifically agreed in a Purchase Order that YVSTC will obtain any permits or authorities, it is the Customer’s responsibility, and YVSTC will not be responsible for any delay due to a failure to obtain or delay in obtaining such permits or authorisations, or any Losses sustained by the Customer.
3. PAYMENT
3.1 Where YVSTC supplies the Services to the Customer under a Customer Credit Application, YVSTC will invoice the Customer on a monthly basis for all Services for the calendar month. All Fees so invoiced must be paid by the Customer by the 20th day of the following calendar month.
3.2 Where YVSTC does not supply the Services to the Customer under a Customer Credit Application, or terminates any Customer Credit Application then in force, the Customer agrees to pay YVSTC the Fees by the due date and method specified in any invoice (or within 7 days of the date of any invoice if no due date is specified), or in accordance with any payment terms otherwise agreed in a Purchase Order. Where payment up-front or on completion (in whole or in part) is required by YVSTC, YVSTC may (in its sole discretion) elect not to commence provide the Services until payment in full is received and will not be liable for any resulting delay or Losses sustained by any person.
3.3 The Customer acknowledges that the Customer may be required under a Purchase Order to make an up-front payment of a minimum of 50% relating to production job estimate, and that any such amount paid to YVSTC is a genuine pre-estimate of Fees and/or Losses likely to be incurred by YVSTC and is non-refundable (save to the extend any refund may be required by law).
3.4 YVSTC may incur expenses that are directly attributable to providing the Services (including without limitation travel, accommodation, equipment or other administrative expenses) (Expenses). If the Fees are agreed in the Purchase Order to exclude Expenses, the Customer agrees to pay all properly incurred Expenses, provided that individual Expense items over $1,000 are approved by the Customer prior to being incurred.
3.5 The Customer agrees to provide YVSTC with all necessary information to enable the issuing of an invoice and/or taking of payment, and to inform YVSTC promptly of any change to that information.
3.6 YVSTC may increase the Fees or alter or terminate a Customer’s credit limit from time to time on notice to the Customer (Fee Notice). The Fee Notice will apply to future Purchase Orders provided by the Customer. YVSTC may specify that a Fee Notice applies to an existing Purchase Order, however where this occurs, the Customer will have 30 days from the date of any Fee Notice to provide YVSTC with written notice terminating the affected Purchase Order. A failure by the Customer to terminate a Purchase Order in accordance with the foregoing will be deemed as acceptance of the increased Fees or altered credit facility.
3.7 The Customer agrees that all Fees not paid in full on the due date are debts due and payable immediately. The Customer agrees to pay all of YVSTC’s costs of recovering such debts on a full indemnity basis (which may include debt collection or legal fees). YVSTC reserves the right to charge, and the Customer agrees to pay, interest on any overdue debt owed by the Customer under this Agreement, at a rate of 2% above the Commonwealth Bank of Australia’s commercial lending rate at the time of charging.
3.8 The Customer acknowledges that it may be required under a Purchase Order to pay a deposit (or a number of deposits) in respect of the Fees and that any such deposit paid to YVSTC is non-refundable (save to the extent any refund may be required by law).
3.9 Where YVSTC states in a Purchase Order at any time that the Building and Construction Industry Security of Payment Act 2002 (Vic) applies to that Purchase Order, then the provisions of that Act apply in respect of the payment of Fees under that Purchase Order, and will apply to the extent of any inconsistency with the terms of the relevant Agreement.
3.10 Without limiting the effects of clause 5.7, if the delivery of a Services is rescheduled by Customer, a rescheduling Fee outlined in the Purchase Order or notified at the time may apply.
4. GST
4.1 Except where this Agreement states otherwise, each amount payable by a party under this Agreement in respect of a taxable supply by the other party is expressed as a GST exclusive amount and the recipient of the supply must, in addition to that amount, and at the same time, pay to the supplier the GST payable in respect of the supply.
4.2 A party’s obligation to pay an amount under this clause 4 is subject to a valid tax invoice being delivered by the other party. “GST” and other terms used in this clause 4 have the same meaning as under the A New Tax System (Goods and Goods Tax) Act 1999 (Cth) or replacing or amending legislation applicable from time to time.
5. DELIVERY
5.1 Any time quoted for delivery of the Services in a Purchase Order is an estimate only. The Customer is not relieved of any obligation to accept or pay for the Services because of any delay in delivery.
5.2 YVSTC may specify (under a Purchase Order or otherwise) additional conditions which apply to the delivery of Services , including any information, assistance, equipment/facility, or access reasonably required from the Customer, which the Customer must promptly provide.
5.3 If the Customer is notified by YVSTC that exclusive possession of the intended installation site (or any portion of that site) is necessary the delivery of the Services, then the Customer must ensure that YVSTC has exclusive access to that site for the period on which the Services will be delivered unless otherwise agreed. Prior to the Services being delivered, the Customer must notify YVSTC of any safety policies or procedures that apply to the site, including providing the details of the person in control or possession of the site for the purposes of applicable construction and/or health and safety law, and the Customer remains responsible for ensuring that the site can be safely accessed and used for the purposes of delivery .
5.4 YVSTC will make all reasonable efforts to deliver the Services at the Customer's nominated address at the time and on the date agreed. However, time is not of the essence under this Agreement and, except where YVSTC has an obligation under the Australian Consumer Law, YVSTC is not liable for any failure to deliver or delay in delivery for any reason including, without limitation, where an incorrect address has been provided to YVSTC, or where an event beyond YVSTC’s reasonable control occurs in accordance with clause 5.6.
5.5 If for any reason beyond the control of YVSTC (including without limitation as a result of any strike, trade dispute, fire, tempest, theft, breakdown, shortage of stock, a failure of a third party to fulfil their related obligations to YVSTC, or similar) a Purchase Order cannot be filled at the time stipulated by the Customer or quoted for delivery in a Purchase Order, YVSTC shall be entitled to delay or cancel delivery and fulfilment of the Purchase Order, and the Customer agrees that YVSTC will not be liable to the Customer for any Losses arising out of such cancellation.
5.6 The Customer agrees to promptly provide all Customer Material and agrees to bring to YVSTC’s attention any matters about which the Customer is uncertain. YVSTC will not independently verify the accuracy or appropriateness of such Customer Material or instructions. The Customer agrees that YVSTC will not be liable for any Losses arising from reliance on, or inaccuracy or defect in, any Customer Information or instructions supplied by or on behalf of the Customer.
5.7 The Customer is and remains liable to YVSTC for all reasonable costs and/or charges incurred by YVSTC in respect of delayed delivery of Services where caused by an action or omission of the Customer or any event or factor otherwise beyond the reasonable control of YVSTC. The calculation of such a delay period will commence upon the time for delivery stipulated in any Purchase Order or otherwise notified by YVSTC (provided YVSTC will only deliver during ordinary business hours or site hours of operation, unless otherwise agreed between the parties).
5.8 On delivery of Services, if the Customer considers that the Services fail to meet the requirements of a Purchase Order, then the Customer has 7 days to notify YVSTC in writing of the alleged Defect and the Customer must preserve the system in respect of which the Services were delivered and allow YVSTC (or a nominated agent) access to the Customer’s premises for the purpose of inspecting the system. If, upon inspection, YVSTC agrees that the Services were subject to a Defect, the remedies set out in clause 8.2(a) will be provided. If no notice of Defect is given by the Customer within 7 days of the delivery of the Services, the Customer is deemed to have accepted the Services (and that they are free from any Defect as delivered).
5.9 If the Customer notifies YVSTC of a Defect other than in accordance with this clause 1.1, or the Services are affected by an error or defect other than a Defect (including due to ordinary wear and tear or Customer or third party fault, or other exceptions specified by YVSTC in writing), YVSTC may impose a Fee on the Customer (in YVSTC’s sole discretion) to provide the remedies in clause 8.2(a).
6. TERM & TERMINATION
6.1 This Agreement will commence on the Commencement Date and continue in effect unless terminated in accordance with this clause 6. A Purchase Order will commence on the start date specified in that Purchase Order and continue in effect for the whole of the Term of that Purchase Order, unless terminated earlier in accordance with this clause 6 or in accordance with any additional rights of termination, as specified in clause 1.1.
6.2 Either party may terminate this Agreement and/or any one or more Purchase Orders immediately upon written notice to the other party (the Relevant Party) if:
(a) the Relevant Party commits a material breach of this Agreement which is incapable of being remedied or, if the breach is capable of being remedied, the Relevant Party fails to remedy the breach within 7 days after being required in writing to do so; or
(b) the Relevant Party is or is reasonably likely to be insolvent, bankrupt, or otherwise unable to pay its debts as and when they become due.
6.3 YVSTC may terminate, or suspend the supply of the Services under, this Agreement and/or any one or more Purchase Orders immediately upon written notice to the Customer if the Customer:
(a) fails to pay any Fees, or other amounts on or by the due date for payment and otherwise in accordance with this Agreement;
(b) ceases or fails to provide within a reasonable time any information or assistance reasonably necessary for YVSTC to provide any part of the Services; or
(c) acts fraudulently or dishonestly or otherwise in breach of any relevant law.
6.4 Either party may terminate this Agreement on 30 days’ written notice if no Purchase Order has been in force for a period of at least 30 days prior to the date of the notice.
6.5 For the avoidance of doubt, termination of this Agreement under clauses 6.2 or 6.3 will result in the termination of any Purchase Order in force at the date of termination, but termination of a Purchase Order alone will not affect the operation of this Agreement in respect of any other then current or future Purchase Order.
6.6 If the supply of the Services is suspended in whole or in part under clause 6.3, YVSTC may, at its sole election:
(a) end that suspension if and when the relevant breach is cured and YVSTC has the resources available to re-commence supply of the Services;
(b) continue the suspension until YVSTC has the resources available to again supply the Services; or
(c) provide notice of termination at any time if the issue constituting grounds for suspension under clause 6.3 has not been remedied,
and the Customer agrees that YVSTC will not incur any liability in respect of the failure to supply the Services during any period in which those Services are suspended.
6.7 If this Agreement or a Purchase Order is terminated by either party, YVSTC will cease providing the relevant Services and the Customer must immediately pay YVSTC all Fees due or incurred up to the date of termination in connection with those Services, including the unpaid balance of any credit account maintained by YVSTC for the Customer under the Customer Credit Application.
7. WARRANTIES
7.1 YVSTC warrants that:
(a) YVSTC will exercise reasonable due care and skill and comply with all applicable laws (including the Privacy Act 1988 (Cth) and Competition and Consumer Act 2010 (Cth)) in providing Services; and
(b) YVSTC will keep confidential all of the Customer’s Confidential Information, except where YVSTC makes a disclosure on a confidential basis to its advisors, subcontractors, and other persons as necessary to the supply of the Services, or in compliance with the Customer’s instructions, or as required by law.
7.2 The Customer warrants that:
(a) The Customer has the right to provide YVSTC with Customer Material and that YVSTC or its subcontractors’ use of Customer Material in accordance with the Agreement will not infringe the rights of any person, or breach any applicable law (including the Privacy Act 1988 (Cth) and Competition and Consumer Act 2010 (Cth)); and
(b) The Customer will keep YVSTC’s Confidential Information confidential, except where the Customer makes a disclosure with prior written consent from YVSTC or as required by law.
8. LIABILITY & INDEMNITY
8.1 Except as expressly set out in this Agreement, to the maximum extent permitted by law, YVSTC provides the Services on an “as is” basis and excludes any and all conditions, warranties, representations, implied terms and/or liability for any Losses howsoever caused (including by negligence) arising in connection with the Services or this Agreement.
8.2 In respect of any liability of YVSTC which cannot be excluded in accordance with clause 8.1, YVSTC limits its liability to the Customer as follows:
(a) under any applicable consumer guarantees in the Australian Consumer Law in relation to the supply of the Services to either, at YVSTC’s sole discretion: (i) replacing the Services or part thereof; or (ii) supplying equivalent goods; or (iii) repairing the system subject to the Services or part thereof; (iv) paying the cost of replacing or repairing the system that was subject to the Services; or (v) re-performing Services or part thereof.
(b) for breach of agreement, negligence, breach of statutory duty, or any other cause of action other than a breach of an applicable consumer guarantee (regardless of how that liability is caused) arising under this Agreement or related to any Services, in aggregate, to payment of an amount equal to the total Fees paid by the Customer for the relevant Services.
8.3 Neither party will be liable for any consequential, collateral, special, incidental, indirect, exemplary or punitive damages, including, without limitation, loss of profits or revenue, loss of opportunity or loss or destruction of data, costs of cover, costs of delay, however caused and based on any theory of liability, for any claims or causes of action arising out of or related to this Agreement or the Services.
8.4 YVSTC’s Services come with guarantees that cannot be excluded under the Australian Consumer Law. Nothing in this Agreement limits or excludes any right, guarantee, or entitlement that the Customer may have at law, to the extent that such right, guarantee, or entitlement cannot be limited or excluded. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable Losses (not including consequential, indirect, or exemplary loss or damages).
9. DISPUTE RESOLUTION
9.1 A party must not commence court proceedings in relation to a dispute arising under an Agreement until it has exhausted the procedures in this clause 9 unless the party seeks urgent injunctive or interlocutory relief.
9.2 If a dispute arises between the parties, either party may give notice of the dispute (Dispute Notice) to the other party. If a Dispute Notice is given:
(a) YVSTC’s representative and the Customer’s representative must negotiate as soon as possible in an effort to resolve the dispute;
(b) if the dispute is not resolved within 7 days of the Dispute Notice being given, the Managing Directors (or equivalent) of the parties must meet in Melbourne, Victoria (or in any other place or by any other means agreed between the parties) to resolve the dispute within 14 days; and
if the dispute is not resolved within 21 days of the Dispute Notice being given, the parties must instruct the Resolution Institute (or any other person agreed between the parties) to appoint an independent mediator to attempt to resolve the dispute by mediation and the parties must participate in the mediation in good faith. The costs of the mediation must be equally shared by the parties. The Customer may attend the mediation in person or by video or telephone conference.
10. GENERAL
10.1 Subcontractors: The Customer agrees that YVSTC may without notice engage subcontractors to assist YVSTC in providing the Services. YVSTC will remain liable for the actions or omissions of any subcontractor to the same extent YVSTC would be liable under this Agreement if the subcontractor were an employee of YVSTC.
10.2 No employment: Nothing contained in this Agreement constitutes the relationship of joint venture, partnership, or employment between the parties and it is the parties’ express intention to deny such relationships.
10.3 Assignment: YVSTC may by written notice to the Customer assign, transfer, subcontract or otherwise dispose of, in whole or in part, its rights under this Agreement. The Customer must not assign or novate this Agreement without YVSTC’s prior written consent, such consent not to be unreasonably withheld. Nothing in this Agreement creates an assignment or licence in respect of any person’s intellectual property or associated rights.
10.4 Variation: This Agreement may only be amended or modified in writing signed by the parties, save that any standard terms of the Customer are expressly excluded and will not have the effect of varying or replacing this Agreement unless (regardless of the point in time at which such terms are notified to YVSTC).
10.5 Notices: Any notice or demand to be given or made under this Agreement must be in writing signed by a party's authorised representative. A notice will be deemed to be received (a) in the case of a notice given by hand, on delivery; (b) in the case of a notice sent by pre-paid post, 3 business days following the date of postage; (c) in the case of a notice sent by facsimile, on the date the notice was sent provided that the sending facsimile machine confirms by a printed report that the facsimile was successfully sent; and (d) in the case of a notice sent by email, upon the recipient or their mail server confirming receipt of the email.
10.6 Entire agreement: The Terms and Conditions set out in this Agreement contain the entire agreement concluded between the parties, and this Agreement supersedes any and all prior agreements, representations, or understandings between the parties, whether written or oral, in respect of the same subject matter. To the extent that any inconsistency arises between these Terms and Conditions, Purchase Order, and a Customer Credit Application, then those documents will be read in the following order of priority: (a) the Special Conditions; (b) the Customer Credit Application; and (c) these Terms and Conditions.
10.7 Survival: Clauses 1, 6.7, 8, and 9 will continue in force notwithstanding the termination or expiration of a Purchase Order or this Agreement in its entirety for any reason.
10.8 Governing law: This Agreement is governed by and must be construed in accordance with the laws of Victoria, Australia, and the parties irrevocably consent to the jurisdiction of the courts there and their courts of appeal.
YARRA VALLEY SEPTIC TANK CLEANING PTY LTD
We can be contacted via:
Email: info@yarravalleyseptics.com.au
Phone: 1800 427 667
Post: 191 Colchester Road, Kilsyth, VIC, 3137
