Terms and Conditions

Terms and Conditions

  1. Definitions
    • 1.1 “BF” shall mean Base Fabrications Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Base Fabrications Pty Ltd.
    • 1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by BF to the Customer.
    • 1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
    • 1.4 “Goods” shall mean all Goods supplied by BF to the Customer (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 BF to the Customer.
    • 1.5 “Equipment” shall mean all Equipment including any accessories supplied on hire by BF to the Customer (and where the context so permits shall include any supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by BF to the Customer.
    • 1.6 “Services” shall mean all Services supplied by BF to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
    • 1.7 “Price” shall mean the price payable for the Goods as agreed between BF and the Customer in accordance with clause 4 of this contract.
  2. Acceptance
    • 2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods/Equipment.
    • 2.2 These terms and conditions may only be amended with BF’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and BF.
  3. Change in Control
    • 3.1 The Customer shall give BF not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by BF as a result of the Customer’s failure to comply with this clause.
  4. Price And Payment
    • 4.1 At BF’s sole discretion the Price shall be either:
      • as indicated on invoices provided by BF to the Customer in respect of Goods/Equipment supplied; or
      • BF’s quoted Price (subject to clause 4.2) which shall be binding upon BF provided that the Customer shall accept BF’s quotation in writing within thirty (30) days.
    • 4.2 BF reserves the right to change the Price in the event of a variation to BF’s quotation.
    • 4.3 At BF’s sole discretion:
      • a non-refundable deposit may be required; or
      • payment shall be due on delivery/completion of the Goods and/or Services; or
    • 4.4 Time for payment for the Goods/Equipment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
    • 4.5 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and BF.
    • 4.6 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.
  5. Delivery Of Goods/Equipment
    • 5.1 At BF’s sole discretion delivery of the Goods/Equipment shall take place when:
      • the Customer takes possession of the Goods/Equipment at BF’s address; or
      • the Customer takes possession of the Goods/Equipment at the Customer’s nominated address (in the event that the Goods are delivered by BF or BF’s nominated carrier).
    • 5.2 At BF’s sole discretion the costs of delivery are:
      • in addition to the Price; or
      • for the Customer’s account.
    • 5.3 The Customer shall make all arrangements necessary to take delivery of the Goods/Equipment whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods/Equipment as arranged then BF shall be entitled to charge a reasonable fee for redelivery.
    • 5.4 Delivery of the Goods/Equipment to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
    • 5.5 The failure of BF to deliver shall not entitle either party to treat this contract as repudiated.
    • 5.6 BF shall not be liable for any loss or damage whatsoever due to failure by BF to deliver the Goods/Equipment (or any of them) promptly or at all where due to circumstances beyond the control of BF.
  6. Equipment Hire
    • 6.1 The Equipment shall at all times remain the property of BF and is returnable on demand by BF. In the event that the Equipment is not returned to BF in the condition in which it was delivered BF retains the right to charge the Price of repair or replacement of the Equipment.
    • 6.2 The Customer shall;
      • keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
      • not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
      • keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by BF to the Customer.
    • 6.3 The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, BF’s interest in the Equipment and agrees to indemnify BF against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
  7. Risk
    • 7.1 If BF retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
    • 7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, BF is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by BF is sufficient evidence of BF’s rights to receive the insurance proceeds without the need for any person dealing with BF to make further enquiries.
    • 7.3 Where the Customer expressly requests BF to leave Goods outside BF’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
    • 7.4 Where the Customer is to supply BF with any design specifications (including, but not limited to CAD drawings) the Customer shall be responsible for providing accurate data. BF shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Customer.
    • 7.5 Where BF is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and BF shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
  8. Access
    • 8.1 The Customer shall ensure that BF has clear and free access to the work site at all times to enable them to undertake the Services. BF shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of BF.
  9. Title
    • 9.1 BF and the Customer agree that ownership of the Goods shall not pass until:
      • the Customer has paid BF all amounts owing for the particular Goods; and
      • the Customer has met all other obligations due by the Customer to BF in respect of all contracts between BF and the Customer.
    • 9.2 Receipt by BF 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 BF’s ownership or rights in respect of the Goods shall continue.
    • 9.3 It is further agreed that:
      • where practicable the Goods shall be kept separate and identifiable until BF shall have received payment and all other obligations of the Customer are met; and
      • until such time as ownership of the Goods shall pass from BF to the Customer BF may give notice in writing to the Customer to return the Goods or any of them to BF. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
      • BF shall have the right of stopping the Goods in transit whether or not delivery has been made; and
      • if the Customer fails to return the Goods to BF then BF or BF’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods; and
      • the Customer is only a bailee of the Goods and until such time as BF has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to BF for the Goods, on trust for BF; and
      • the Customer shall not deal with the money of BF in any way which may be adverse to BF; and
      • the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of BF; and
      • BF can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
      • until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that BF will be the owner of the end products.
  10. Personal Property Securities Act 2009 (“PPSA”)
    • 10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
    • 10.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment that has previously been supplied and that will be supplied in the future by BF to the Customer.
    • 10.3 The Customer undertakes to:
      • 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 BF may reasonably require to;
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
      • indemnify, and upon demand reimburse, BF 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/Equipment charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of BF;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment in favour of a third party without the prior written consent of BF;
      • immediately advise BF of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
    • 10.4 BF and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • 10.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • 10.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • 10.7 Unless otherwise agreed to in writing by BF, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • 10.8 The Customer must unconditionally ratify any actions taken by BF under clauses 10.3 to 10.5.
    • 10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
  11. Security and Charge
    • 11.1 In consideration of BF agreeing to supply the Goods/Equipment, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • 11.2 The Customer indemnifies BF from and against all BF’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising BF’s rights under this clause.
    • 11.3 The Customer irrevocably appoints BF and each director of BF as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.
  12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • 12.1 The Customer must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify BF in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow BF to inspect the Goods/Equipment.
    • 12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
    • 12.3 BF acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • 12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, BF makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. BF’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • 12.5 If the Customer is a consumer within the meaning of the CCA, BF’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • 12.6 If BF is required to replace the Goods under this clause or the CCA, but is unable to do so, BF may refund any money the Customer has paid for the Goods.
    • 12.7 If the Customer is not a consumer within the meaning of the CCA, BF’s liability for any defect or damage in the Goods is:
      • limited to the value of any express warranty or warranty card provided to the Customer by BF at BF’s sole discretion;
      • limited to any warranty to which BF is entitled, if BF did not manufacture the Goods;
      • otherwise negated absolutely.
    • 12.8 Subject to this clause 10, returns will only be accepted provided that:
      • the Customer has complied with the provisions of clause 12.1; and
      • BF has agreed that the Goods are defective; and
      • the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
      • the Goods are returned in as close a condition to that in which they were delivered as is possible.
    • 12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, BF shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Customer failing to properly maintain or store any Goods/Equipment;
      • the Customer using the Goods/Equipment for any purpose other than that for which they were designed;
      • the Customer continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Customer failing to follow any instructions or guidelines provided by BF;
      • fair wear and tear, any accident, or act of God.
    • 12.10 Notwithstanding anything contained in this clause if BF is required by a law to accept a return then BF will only accept a return on the conditions imposed by that law.
  13. Intellectual Property
    • 13.1 Where BF has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in BF, and shall only be used by the Customer at BF’s discretion.
    • 13.2 The Customer warrants that all designs or instructions to BF will not cause BF to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify BF against any action taken by a third party against BF in respect of any such infringement.
    • 13.3 The Customer agrees that BF may use any documents, designs, drawings or Goods created by BF for the purposes of advertising, marketing, or entry into any competition.
  14. Default & Consequences of Default
    • 14.1 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 a half percent (2.5%) per calendar month (and at BF’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • 14.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by BF.
    • 14.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify BF from and against all costs and disbursements incurred by BF in pursuing the debt including legal costs on a solicitor and own client basis and BF’s collection agency costs.
    • 14.4 Without prejudice to any other remedies BF may have, if at any time the Customer is in breach of any obligation (including those relating to payment), BF may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. BF will not be liable to the Customer for any loss or damage the Customer suffers because BF has exercised its rights under this clause.
    • 14.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) 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.
    • 14.6 Without prejudice to BF’s other remedies at law BF shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to BF shall, whether or not due for payment, become immediately payable in the event that:
      • any money payable to BF becomes overdue, or in BF’s opinion the Customer will be unable to meet its payments as they fall due; or
      • the Customer 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
  15. Compliance with Laws
    • 15.1 The Customer and BF shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
    • 15.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
    • 15.3 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
  16. Dispute Resolution
    • 16.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
      • referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
      • conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
  17. Cancellation
    • 17.1 BF 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 Customer. On giving such notice BF shall repay to the Customer any sums paid in respect of the Price. BF shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • 17.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by BF (including, but not limited to, any loss of profits) up to the time of cancellation.
    • 17.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
  18. Privacy Act 1988
    • 18.1 The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for BF to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by BF.
    • 18.2 The Customer agrees that BF may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes: to assess an application by the Customer; and/or
      • to notify other credit providers of a default by the Customer; and/or
      • to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
      • to assess the creditworthiness of the Customer.

      The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

    • 18.3 The Customer consents to BF being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
    • 18.4 The Customer agrees that personal credit information provided may be used and retained by BF for the following purposes (and for other purposes as shall be agreed between the Customer and BF or required by law from time to time): the provision of Goods; and/or
      • the marketing of Goods by BF, its agents or distributors; and/or
      • analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
      • enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
    • 18.5 BF may give information about the Customer to a credit reporting agency for the following purposes: to obtain a consumer credit report about the Customer;
      • allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
    • 18.6 The information given to the credit reporting agency may include: personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
      • details concerning the Customer’s application for credit or commercial credit and the amount requested;
      • advice that BF is a current credit provider to the Customer;
      • advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
      • that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
      • information that, in the opinion of BF, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);
      • advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
      • that credit provided to the Customer by BF has been paid or otherwise discharged.
  19. Unpaid BF’s Rights
    • 19.1 Where the Customer has left any item with BF for repair, modification, exchange or for BF to perform any other Service in relation to the item and BF has not received or been tendered the whole of the Price, or the payment has been dishonoured, BF shall have:
      • a line on the item;
      • the right to retain the item for the Price while BF is in possession of the item;
      • a right to sell the item.
    • 19.2 The lien of BF shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
  20. General
    • 20.1 The failure by BF to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect BF’s right to subsequently enforce that provision. 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.
    • 20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which BF has its principal place of business, and are subject to the jurisdiction of the courts in that state.
    • 20.3 Subject to clause 12 BF shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by BF of these terms and conditions (alternatively BF’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire).
    • 20.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by BF nor to withhold payment of any invoice because part of that invoice is in dispute.
    • 20.5 BF may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
    • 20.6 The Customer agrees that BF may amend these terms and conditions at any time. If BF makes a change to these terms and conditions, then that change will take effect from the date on which BF notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for BF to provide Goods/Equipment to the Customer.
    • 20.7 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.
    • 20.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

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