1. Definitions
In these Terms unless the context requires otherwise:
Additional Charges means charges that are separate from the Price, and may include but are not limited to, transport, access, after hours call out fees, increase in cost of Goods, administration fees and equipment hire costs.
Beal Electrical Services means Beal Electrical Services Pty Ltd as trustee for Beal Family Trust (ABN 36 746 073 982) trading as Beal Electrical Services.
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence or otherwise).
Confidential Information is information that:
(a) by its nature is confidential;
(b) is designated by the parties as confidential; or
(c) the parties know or ought to know is confidential;
and includes all information about Beal Electrical Services and its related bodies corporate, including but not limited to, all technical, financial, commercial and other information in any form (for example: as a document or in electronic form) of or relating to them or their business affairs, which is made available or which becomes known during the terms of this Contract but does not include information that was in the public domain at the time of its disclosure.
Consumer Guarantees means the consumer guarantees contained in the Australian Consumer Law, which is contained in Schedule 2 of the Competition and Consumer Act 2010.
Contract means the contract formed as a result of the acceptance of an Order by Beal Electrical Services. It includes these Terms and the Quote.
Control has the meaning ascribed to it under section 910B of the Corporations Act (Cth) 2001.
Customer means the customer set out in the Quote, offer or other document provided by Beal Electrical Services (in the absence of such information, the customer who placed the Order).
Delivery Dates means the dates set out in the Quote or such date as the parties otherwise agree in writing.
Goods means the materials and electrical related products supplied by Beal Electrical Services to the Customer as described in the Quote.
Insolvency Event means any of the following analogous events:
(a) the Customer, being an individual, commits and act of bankruptcy;
(b) a party becomes insolvent;
(c) a party disposes of whole or any part of its assets, operations or business other than in the ordinary course of business;
(d) the Customer is unable to pay Beal Electrical Services’ debts as the debts fall due;
(e) any step is taken by a mortgagee to take possession of or dispose of the whole or any part of a party’s assets, operations or business; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or party of any party’s assets, operations or business.
Intellectual Property is all of Beal Electrical Services’ and its Related Bodies Corporate’s present and future patent and patent applications; rights to inventions; copyright and related rights; trademarks; service marks; trade names; domain names and URLs; rights in good will or to sue for passing off; rights in designs; registered designs; rights in computer software; database rights; rights in Confidential Information (including know-how and trade secrets); and any other intellectual property rights. These rights may be registered or unregistered.
Invoice means a tax invoice issued by Beal Electrical Services to the Customer specifying the Price and any ancillary costs payable by the Customer to Beal Electrical Services for the Services.
Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees).
Order means any written or verbal order by the Customer to Beal Electrical Services for the Goods and/or Services.
Price means the price payable in respect of the Goods and Services, as specified in the Quote and/or Invoice issued by Beal Electrical Services.
Quote means the Quote from Beal Electrical Services to the Customer for the provision of the Services whether it is pending inspection of the Work Site, or not.
Related Bodies Corporate means related bodies corporate as defined by the Corporations Act 2001 (Cth).
Scope of Works means the scope of the project for which the Customer has engaged Beal Electrical Services to perform the Services and supply the Goods as set out in the Quote and does not include any items expressly stated to be excluded.
Services means the services to be provided by Beal Electrical Services to the Customer as described in the Quote.
Terms means these Terms and Conditions of sale.
Work Site means the Customer’s site where the Scope of Works will be performed and the Services provided as set out in the Quote.
2. General
2.1. These Terms apply to the sale of Goods and Services from Beal Electrical Services to the Customer to the exclusion of all other terms and conditions of Beal Electrical Services.
2.2. Beal Electrical Services will not supply Goods and Services on any other terms or conditions other than those set out herein.
3. Acceptance
3.1. The Customer is deemed to have accepted a Quote and agreed to these Terms by:
(a) signing or accepting the Quote electronically;
(b) sending or issuing a purchase order to Beal Electrical Services;
(c) accepting the Quote verbally or in writing;
(d) signing and returning a copy of these Terms; or
(e) providing instructions to Beal Electrical Services in relation to the provision of the Goods and Services.
3.2. If the Customer accepts a Quote as specified in clause 1, the parties will have created a binding Contract and Beal Electrical Services will supply the Goods and/or Services to the Customer, and the Customer will pay the Price to Beal Electrical Services as specified on the Invoice in accordance with the terms of the Contract.
3.3. The Customer must pay to Beal Electrical Services any costs associated with the Customer purporting to cancel the Contract, including any costs for the Services not yet delivered, to be calculated on a pro-rata basis, and costs for materials ordered and associated administration and management costs.
3.4. Beal Electrical Services may cancel any Contract at any time prior to the provision of the Services with no liability other than to repay any amount of the Price paid by the Customer in advance of the cancellation.
4. Services
4.1. Beal Electrical Services will provide the Services to the Customer.
4.2. Beal Electrical Services will exercise reasonable care, skill and ability when performing the Services.
4.3. In providing the Services, Beal Electrical Services will:
(a) not be responsible for any timeline or quality of works by third party trades; and
(b) carry out Services by the Delivery Dates.
4.4. The Delivery Dates are subject to the Customer providing Beal Electrical Services with all relevant information, documentation, approvals, permits, licences, material, and access to the Work Site to enable Beal Electrical Services to perform the Services.
4.5. If the Work Scope requires the Services to be provided outside, the Delivery Dates will be subject to the weather. Beal Electrical Services will not be liable for any delays to the Delivery Dates caused by inclement weather.
4.6. Beal Electrical Services will only issue any requisite compliance certificate for the Services once the works are 100% complete, or otherwise in accordance with Energy Safe Victoria and associated legislation.
5. Customer’s responsibilities and warranties
5.1. The Customer must:
(a) provide Beal Electrical Services with all resources, including but not limited to information, documentation, approvals, permits and licences, to the premises and the Work Site to enable Beal Electrical Services to perform the Services (unless otherwise stipulated in the Quote);
(b) ensure that Beal Electrical Services has clear and free access to the Work Site at all times to enable them to undertake the Services, including ability to have the power turned off for the duration of the Services;
(c) ensure that Beal Electrical Services have adequate access to water, electricity, toilet and washing facilities;
(d) ensure that it has obtained the appropriate authority or consents required for Beal Electrical Services to perform the Services at the Work Site, including but not limited to, the Customer ensuring that authorities and/or consents (as appropriate) have been obtained from the nearby workers/tenants/public;
(e) use all reasonable endeavours to ensure that there are no circumstances which may affect or impair Beal Electrical Services ability to provide the Services;
(f) provide Beal Electrical Services with any details of any required specifications or qualities of the Goods or Services at the time the Customer provides an Order to Beal Electrical Services;
(g) ensure that the specifications or qualities of the Goods and Services stated in any Order by the Customer will be fit for the intended purpose of the Services; and
(h) if Goods, tools, etc are required to be stored on the Work Site, the Customer shall supply Beal Electrical Services a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall the be Customer’s responsibility.
5.2. It is the Customer’s responsibility to apply for, procure, ensure the accuracy, and bear the costs of procuring the same, unless expressly agreed otherwise and provided for in the Quote, plans of the Works and all underground features, including but not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Work Site, and provide to Beal Electrical Services at least two (2) business days before Beal Electrical Services commences the works.
(a) Plans can be requested from DBYD (Dial Before You Dig) website at www.1100.com.au or phone 1100.
(b) The Customer indemnifies Beal Electrical Services against any liability, loss, claim or proceedings of any kind arising from the Works, as a result of damage to services not precisely located and notified as per clause 5.2.
5.3. If any permits, permissions, consents and/or authorisations for the Services are required before the Services commence, it is the Customer’s responsibility to apply for, procure and bear the costs of procuring the same unless expressly agreed otherwise and provided for in the Quote.
5.4. The Customer must take out and maintain all necessary insurance for the duration of the Services and for any Goods being supplied.
5.5. Beal Electrical Services will be entitled to rely on the Customers warranties set out in this clause 5.
6. Site Inductions
6.1. Where the Customer requires Beal Electrical Services to undertake a Site induction, the Customer will be liable to pay the hourly charges for that period (standard and/or overtime, if applicable).
6.2. Where Beal Electrical Services are in control of a Work Site, the Customer and/or the Customer’s third party contractors must initially carry out Beal Electrical Services’ Health and Safety induction course before access to the Work Site will be granted. Inspection of the Work Site during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Customer and/or third party acting on behalf of the Customer must at all times be accompanied by Beal Electrical Services.
7. Price and Payment Terms
Specific terms for Real Estate Agent/Body Corporate Customers (clause 7.1)
7.1. Unless otherwise stipulated in the Quote, Real Estate and Body Corporate Customers must pay the Invoice amount in the manner set out in the Invoice and within fourteen (14) days following the date of the Invoice or as otherwise agreed between the parties in writing prior to commencement.
Specific terms for Builder Customers (clause 7.2)
7.2. Unless otherwise stipulated in the Quote, Builder Customers must pay the Invoice amount in the manner set out in the Invoice and within thirty (30) days following the date of the Invoice or as otherwise agreed between the parties in writing prior to commencement.
All Customers
7.3. Payment is due upon receipt of the Goods and Services (ie immediate payment), unless otherwise agreed between the parties in writing prior to the commencement of the Services.
7.4. Unless otherwise stipulated by Beal Electrical Services, the Price does not include GST.
7.5. In circumstances where the Scope of Works contemplates the Goods and Services to be provided in stages then, unless agreed otherwise in writing or set out in the Quote, Beal Electrical Services reserves the right to submit progress claims and invoice monthly or in accordance with any other invoicing schedule that Beal Electrical Services determines appropriate.
7.6. Until payment is made in full, Beal Electrical Services shall retain title over the Goods at all material times not withstanding that the Goods may have been delivered and installed.
7.7. If the Customer fails to make payment of any amount of the Price on the due date, Beal Electrical Services may suspend its Services and the Customer must pay to Beal Electrical Services interest on the full amount outstanding at the rate equal to 4% higher than the penalty interest rate fixed by the Attorney-General of Victoria pursuant to s2(1) of the Penalty Interest Rate Act 1983 (Vic), calculated monthly for the period from the due date until payment is received.
7.8. The Customer must reimburse Beal Electrical Services for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expense associated with any action by Beal Electrical Services to recover money from the Customer.
7.9. The Customer agrees that it must pay to Beal Electrical Services on demand any expenses, fees and disbursements incurred by Beal Electrical Services in recovering any amount owing to it by the Customer, including any reasonable debt collection agency fees and legal expenses and any costs incurred by Beal Electrical Services in respect of any Order cancelled by the Customer.
7.10. The Customer may not withhold, make deductions from, or set-off payment of any of the Price due to Beal Electrical Services for any reason.
7.11. At Beal Electrical Services’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 002 (Vic) or its applicable interstate equivalent legislation may apply.
7.12. Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 (Vic) or its applicable interstate equivalent legislation, except to the extent permitted by that legislation where applicable.
8. Variations to the Goods or Services
8.1. If the Customer wishes to make changes to the Order for the Services or the Scope of Works, it must notify Beal Electrical Services of those changes as soon as possible, and if those changes result in additional work or time required by Beal Electrical Services, Beal Electrical Services may:
8.1.1. vary the Price to include any additional costs incurred by Beal Electrical Services as a result of those changes;
8.1.2. apply any Additional Charges incurred as a result of the changes.
8.2. If the Customer causes a delay in the performance of the Services without providing Beal Electrical Services with reasonable written notice in advance, Beal Electrical Services may add to the Price any additional costs or Additional Charges incurred by Beal Electrical Services for the provision of the Services.
8.3. If the Customer requests Beal Electrical Services to make an emergency call-out after hours or causes Beal Electrical Services to cancel or reschedule other work then Beal Electrical Services reserves the right to charge a minimum call-out fee of one (1) hour labour costs plus kilometre travelled rate plus Materials used to supply the Goods and Services, unless otherwise agreed between Beal Electrical Services and the Customer.
8.4. If the Customer requests Beal Electrical Services to urgently supply Goods and Services that may require Beal Electrical Services to work outside normal business hours (including, but not limited to working, through lunch breaks, weekends, and/or public holidays), unless otherwise agreed between Beal Electrical Services and the Customer.
8.5. If the Customer requests Beal Electrical Services to diagnose a fault that requires investigation, disassembly, and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
8.6. Where additional Goods or Services are required due to the discovery of hidden or unidentifiable difficulties (including but not limited to, limitations to accessing the Work Site and/or crawl spaces, safety concerns, prerequisite work by any third party not being completed, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, hard rock barriers below the surface, iron reinforcing rods in concrete or hidden pipes and wiring in walls, etc), which are only discoverable on the commencement of the Services, Beal Electrical Services reserves the right to change the Price.
8.7. If the price of Goods increases between the provision of the Quote and the supply of the Services, Beal Electrical Services will provide notice to the Customer, and the Customer will be responsible for any Additional Charges required to supply the Goods.
9. Force Majeure
9.1. Beal Electrical Services will not be liable to the Customer for any failure to perform, or delay in performing Beal Electrical Services’ obligations under this Contract if the failure or delay is due to an act of war, revolution or terrorism, pandemic, mandatory lockdown, an act of God, or any other event beyond the control of Beal Electrical Services. If such a failure or delay continues for a period of 30 days, Beal Electrical Services may terminate this Contract by giving written notice.
9.2. This clause 8 does not apply to any obligation to make payments under the Contract.
10. Liability
10.1. Beal Electrical Services will not be liable to the Customer or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any other remote abnormal or unforeseeable loss whether or not in the reasonable contemplation of the parties.
10.2. Beal Electrical Services will not be liable for:
(a) any loss or damage to the Work Site, including, damage to buildings, walls, painted surfaces, pathways, garden, driveways and concreted, paved, or grassed areas;
(b) if trenching is required, any damage to underground services and any repair required;
(c) any damage to (or need for reinstatement of) walls, concrete, paint, NBN cabling, solar panels or any other equipment or installation which is required to be damaged or removed for the performance of the Services. Beal Electrical Services may, at the Customer’s request, source third party contractors to perform removal and reinstallation for the Customer, however, any resulting contract for such services shall be between the Customer and the third party service provider unless otherwise agreed in writing with Beal Electrical Services; and
(d) handling and/or removal of asbestos product. In the event where asbestos (or other hazardous material) is discovered on the Site:
a. Beal Electrical Services shall suspend the Services; and
b. the Customer shall be fully responsible for the resolution of any resulting problems; and
c. Additional Charges will apply for any cost incurred by Beal Electrical.
11. Defects
11.1. The Customer must inspect all Goods on delivery (or the works on completion) and must within seven (7) days of delivery notify Beal Electrical Services in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote.
11.2. The Customer must promptly notify Beal Electrical Services in writing of any defects or faults in the Goods and Services or of defective workmanship in carrying out the Services as soon as it becomes aware of such defect.
11.3. Following the written notification by the Customer, the Customer must allow Beal Electrical Services access to inspect the Work Site and to review the Goods and Services.
11.4. Subject to the Consumer Guarantees, Beal Electrical Services will not be liable for any defect or damage which may be caused or partly caused by, or arises as a result of:
(a) any underlying structural defects, faults or degradation;
(b) any pre-existing problems with the existing wiring and/or structural integrity of the Work Site;
(c) the Customer failing to properly maintain the Work Site;
(d) the Customer using the Work Site for any purpose other than for which it was designed;
(e) the Customer continuing to use the Work Site after any defects become apparent or should have become apparent;
(f) the Customer failing to appropriately advise Beal Electrical Services promptly after any defects become apparent or should have become apparent;
(g) interference with the Services by the Customer or any third party without Beal Electrical Services’ written prior approval;
(h) the Customer failing to follow any instructions or guidelines provided by Beal Electrical Services; or
(i) fair wear and tear, any accident, or force majeure event as set out in clause 10 of this Contract.
11.5. Nothing in this clause 12 shall absolve the Customer of its payment obligations under clause 7 nor give rise to a right of set off.
12. Indemnity
The Customer agrees to indemnify Beal Electrical Services against any Liability arising from the Customer’s breach of the Contract or from its use of the Work Site including, without limitation, any damages resulting from negligence, mistake, omission or failure of performance, whether or not resulting from any act of Beal Electrical Services or its agents.
13. Confidential Information and Intellectual Property
13.1. The Customer must not at any time, or for any reason, whether during the term of this Contract or after its termination disclose to any person or use for their own or another person’s benefit any Confidential Information.
13.2. The Customer acknowledges and agrees that:
(a) the Intellectual Property remains the property of Beal Electrical Services; and
(b) this Contract does not confer on the Customer any proprietary right or title to any of the Intellectual Property.
13.3. The Customer acknowledges that Beal Electrical Services may take photos and videos of the Goods, Services and Work Site (including by operation of an aerial drone over the Work Site) for quality assurance and marketing purposes. The Customer hereby consents to any photos and videos taken by Beal Electrical Services (or its agents) before, after or in the course of providing the Services being used for promotional purposes, including publication on any social media platform, print material or being furnished to prospective clients of Beal Electrical Services for marketing or demonstration purposes.
14. Termination
14.1. Beal Electrical Services and the Customer may immediately terminate, or suspend the performance the Contract if:
(a) the other party breaches a term of the Contract (including these Terms) and does not remedy the breach within 14 days of notification;
(b) the other party breaches a term of the Contract (including these Terms) which is not capable of remedy;
(c) there is any direct or indirect change in the Control of either party; and
(d) if an Insolvency Event occurs.
14.2. If the Contract is terminated for any reason:
(a) the Customer must immediately pay to Beal Electrical Services a pro-rata payment for the Goods provided and Services performed by Beal Electrical Services up to the date of termination, and any other money owed by the Customer to Beal Electrical Services under this Contract as at the date of termination; and
(b) termination does not affect any accrued rights or liabilities of the parties.
14.3. Termination of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
15. Subcontracting
Beal Electrical Services may sub-contract all or any part of its rights and obligations under the Contract without the Customer’s consent.
16. Jurisdiction
The Contract between Beal Electrical Services and the Customer is made in the State of Victoria, and the parties agree to submit all disputes arising between them to the courts of such State.
17. Entire Agreement
17.1. Beal Electrical Services and the Customer acknowledge that the Contract constitutes the entire agreement between them, and that the only enforceable obligations and liabilities of Beal Electrical Services and the Customer in relation to the subject matter of the Contract is contained herein.
17.2. All representations, communications and prior agreements are superseded by the Contract.
18. Variation
Beal Electrical Services may change these Terms at any time if it has given to the Customer at least 30 days’ notice in writing of the proposed change.
19. Control
The Customer must immediately provide written notice to Beal Electrical Services if there is any direct or indirect change in the Control of the Customer.
20. Waiver
Any failure by a party to insist upon strict performance of any term or condition in these Terms shall not constitute a waiver of any rights of that party under that term or condition or any other provision of the Contract.
21. Severance
If any term of this Contract is found to be invalid or unenforceable, then that term shall be severed and the remaining terms shall continue in full force between the parties.