Engagement Terms

These are the engagement terms governing the supply of Services by Kayron Trading Pty Ltd as trustee for the Kayron Family Trust trading as Trade Estimates (“TE”, “we” or “us”) of: 6 Torrens Court, Coombabah. QLD 4216; 0422 227 802; and ron@tradeestimates.com.au.

1. General
   • These engagement terms apply to all purchases of Services by a client (“you” or “Client”) from us. We expressly reject any terms you propose that vary or add to our engagement terms. 
   • These engagement terms can be varied only in accordance with either changes or additions published by us from time to time about these engagement terms or by written agreement between us and you expressly stating that the agreement varies these engagement terms. The updated engagement terms do not apply to any Services you have already ordered from us and we have agreed to supply those Services.
2. Engaging our Services
   • You can engage us to render an Estimate in writing by counter-signing a quote for estimate issued by us or in any other way acceptable to us. By engaging us, you thereby accept these engagement terms.
   • We can accept or reject an engagement in our discretion. We will confirm engagement by sending you an engagement confirmation.
   • Upon sending to you the confirmation, you are obliged to purchase the Services set out in the applicable quote for an estimate.
   • We can cancel an engagement for Services if you are late in paying for any prior or current Services or have otherwise breached these engagement terms, you are insolvent or enter into any form of bankruptcy or external administration.
   • You must provide TE with timely, accurate and proper instructions, including complete plans for the Project and all other documents and other records relevant to allow TE to provide the Services. You must at all times act reasonably and take reasonable care to protect your own interests concerning the Estimate and the Project.
3. Price
   • The price for the Services is the price set out in the quote for an estimate.
   • At the time of providing the Services, we will invoice you for those Services. We may require a deposit or payment in full before the Services are provided to you.
   • You must pay us for the Services within the time indicated in the invoice. Your payment must be made without any set-off, discount or by way of exchange of your goods or Services.
   • You must pay us in AUD$.
   • If you are late in paying for the Services, then you must also pay to us interest at the monthly rate of 1.5% (compounding monthly). You hereby indemnify us for all costs incurred arising from your default, including all legal costs.
   • If your account is overdue then we can, without notice to you, cease to supply you with our Services.
   • You must inform us in writing of any discrepancies in our invoices within 7 days of the invoice date.
   • The price for the Services is exclusive of GST. You must pay all GST arising from the supply of the Services to you.
   • Payment can be made by cash, or by cheque, or by bank cheque, or by credit card (but we may in addition to the price charge you the fees charged by the credit card provider to us), or by direct credit, or by any other method as agreed to between the Client and TE. If you pay for Services by cheque, then payment only occurs when all cheques have been presented and cleared in full.
4. Rendering the Services to You
   • We will render the Services to you via email or drop box.
   • We make all statements or forecasts of the time when the Services will be rendered in good faith, but these are estimates only.
   • You must notify us within 7 days after we rendered the Services if you believe we have not properly or completely rendered the Services as agreed. We will investigate your claim within a reasonable time. 
   • Subject to clause 5, we are not liable to you for any loss or damage arising directly or indirectly from any delay in rendering, or failure to render, the Services. If we are not able to render the Services to you, then we will notify you.
   • If you are a consumer pursuant to the Australian Consumer Law, then we guarantee that the Services will be rendered within a reasonable time.
   • TE agrees not to render an Estimate for the Project to any other person.
5. Accuracy of Estimate
   • The Estimate will be prepared as at its issue date and based upon prices for goods and Services included in the Estimate at that time. Those prices may increase, and render the Estimate, to that extent, inaccurate.  Client recognises this risk and accepts this risk.
   • The Estimate will also be based on information provided by the Client (such as its costs of labour, contractors, or raw materials. The Client warrants that all information that it provides to TE is accurate and acknowledges that to the extent it is not then the Estimate itself may be inaccurate.
   • The Estimate is also subject to any qualifications, assumptions or other matters set out in the Estimate itself.
   • Upon us providing the Estimate to you, you must check it to make sure it adequately meets the needs of the Project and that the figures in it add up to the total amount set out in the Estimate. You warrant that you are experienced in the relevant industry and have the skills and resources to do this.  If you have any questions or comments, we invite you to provide them to us to seek to ensure the Estimate is as accurate as possible.
   • You acknowledge and agree that ultimately any quote (that is or includes the Estimate) you submit to your Customer for the Project is your quote and you are responsible for it to the Customer.
6. PPSA
   • You acknowledge and agree:

(a)         that you grant us a Security Interest in your assets and chattels other than realty;

(b)        the Security Interest secures the purchase price for all Services rendered by us to you;

(c)         the Security Interest attaches to your assets and chattels at the time we commence rendering the Services to you; and

(d)        that we are entitled to register the Security Interest pursuant to the PPS Law.

• To avoid any doubt, the Parties intend this document to create a security interest in your assets and chattels above for the purposes of the PPS Law.
• The Security Interest ranks in priority ahead of all other Security Interests over your assets and chattels other than security interests already registered on the PPSR.
• You agree to do anything (such as obtaining consents, completing, signing and producing documents and supplying information) which we consider necessary for the purpose of:

(a)        ensuring that the Security Interest is enforceable, perfected and otherwise effective;

(b)        enabling us to apply for any registration or give any notification (including registering a Financing Statement or Financing Change Statement on the PPSR as a Security Interest pursuant to the PPSA), in connection with the Security Interest so that it has the priority required by us;

(c)         enabling us to exercise any powers in connection with the Security Interest; and

(d)        obtaining possession or control of any of your assets and chattels for the purpose of perfecting any Security Interest in them by possession or control for the purposes of the PPS Law.

• You agree not to change your name, or any other details required on the PPSR, without first notifying us in writing.
• Without limiting any other provision of this document, you waive your right to receive any Verification Statement (or notice of any Verification Statement) in respect of any Financing Statement or Financing Change Statement relating to any Security Interest created under this document.
• To the maximum extent permitted by law, you waive any right you may have pursuant to, and hereby contract out of the following sections of the PPSA: Section 95 (notice of removal of accession) to the extent it requires us to provide you with a notice, Section 125 (obligation to dispose of or retain collateral), Section 130 (notice of disposal) to the extent it requires us to provide you with a notice, Section 132(4) (statement of account if no disposal), Section 135 (notice of retention), Section 142 (redemption of collateral) and 143 (reinstatement of security agreement).
• You and we agree that subject to section 275(7) of the PPSA neither of us will disclose information of the kind described in section 275(1) of the PPSA in response to a request made pursuant to section 275(1) of the PPSA or otherwise.
• You agree to pay our costs of any discharge or necessary amendment of any Financing Statement or Financing Change Statement.

7. Additional Security
   • Despite anything to the contrary contained herein or any other rights which TE may have howsoever:
     • where the Client and/or the Guarantor (if any) is the owner of land, realty or any another 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 TE or TE’s nominee to secure all amounts and other monetary obligations payable under these terms. The Client and/or the Guarantor acknowledge and agree that TE (or TE’s nominee) is entitled to lodge where appropriate a caveat, which caveat may be withdrawn once all payments and other monetary obligations payable hereunder have been met;
     • if TE elects to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor hereby indemnify TE from and against all TE’s costs and disbursements including legal costs on a solicitor and own client basis; and
     • the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint TE or TE’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.

8. Guarantee by Client Contact
   • Where the Client Contact is a director or shareholder of the Client, then the Client Contact (Guarantor), by authorising the Estimate on behalf of the Client, guarantees to pay TE on demand all moneys owed by the Client to TE despite; (a) the Guarantor not having notice of any neglect or omission on the part of the Client; (b) no demand for payment being made against the Client; (c) any other matter (without limitation) that would otherwise affect the Guarantor/s obligations; or (d) any person listed as a proposed Guarantor not signing this guarantee.
   • Despite anything to the contrary contained herein or any other rights which TE may have howsoever:
     • where a Guarantor is the owner of land, realty, personal property or any another asset capable of being charged, 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 TE or TE’s nominee to secure all amounts and other monetary obligations payable under these terms. The Client and/or the Guarantor acknowledge and agree that TE (or TE’s nominee) is entitled to lodge where appropriate a caveat, which caveat may be withdrawn once all payments and other monetary obligations payable hereunder have been met; and
     • if TE elects to proceed in any manner in accordance with this clause and/or its sub-clauses, the Guarantor hereby indemnifies TE from and against all TE’s costs and disbursements including legal costs on a solicitor and own client basis.

9. Quality Guarantee for the Estimate
   • We guarantee that the Services will be rendered with due care and skill.
   • Unless you make known to us that the Services are being acquired for a particular purpose or the result you wish the Services to achieve, then we make no guarantee that the Services are fit for any particular purpose or to achieve any particular result.
   • The guarantee in clause 1 operates for 6 months or the period allowed in the Australian Consumer Law (if you are a consumer).
   • If within 7 days of us rendering the Services you believe they did not conform to our guarantee, then please contact us at our address, phone number or email address listed at the start of these engagement terms.
   • Following contact from you pursuant to clause 4, if we believe that any Services did not conform to the guarantee in clause 9.1, then we will render the Services again.
   • To the maximum extent permitted by law the limit of our liability to you is:

(a)         us supplying the Services again pursuant to clause 9.5; or

(b)        payment of the cost of having the Services supplied again.

• To the maximum extent permitted by law, we are not liable in any circumstances for any injury, damage or loss, including consequential damage or loss (including without limitation loss of market, loss of profit or loss of contracts) whether arising directly or indirectly, whether arising in contract, tort, in equity or on some other basis, to people or property arising out of us rendering the Services to you.
• Mandatory Statement in favour of Australian Consumers:

To the maximum extent permitted by law, we are not liable in any circumstances to the Customer.

“Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service you are entitled:

• to cancel your Service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss of damage. If the failure does not amount to a major failure, you are entitled to have problems with the Service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund of any unused portion for the contract.”

• The benefits to you pursuant to this clause are in addition to the other rights and remedies you may have pursuant to applicable law.

10. Credit
    • This clause applies if TE allows the Client time to pay for an invoice (provision of credit).
    • The Client acknowledges that the credit you seek is commercial credit and is not sought wholly or predominately for any or all of the following purposes:
      • for personal, domestic or household purposes;
      • to purchase, renovate or improve residential property for investment purposes; or
      • to refinance credit that has been provided wholly or predominately to purchase, renovate or improve residential property for investment purposes.
    • By submitting the credit application, the Client acknowledges and agrees that TE may:
      • seek a report about you from a credit reporting agency;
      • give a credit reporting agency certain personal information about the Client, including personal identifying details; the fact that the Client has applied for credit and the amount; payments which become overdue for more than 60 days or payments for which recovery steps have commenced; advice that payments are no longer overdue; payments including cheques, credit cards and direct debits which have been dishonoured; court judgments or bankruptcy orders made against the Client; that, in the opinion of TE, the Client has committed a serious credit infringement; and when TE ceases providing Services to the Client;
      • seek from or give to, persons (including the Client’s nominated trade referees, creditors, bankers, financiers, credit providers, mortgage and trade insurers, Guarantors and/or credit reporting agencies) reports, information or opinions about the Client’s credit worthiness, credit standing, credit history or capacity and make any other inquiries as TE considers reasonably necessary for such purposes;
      • use and disclose information about the Client to provide the products or Services requested by the Client; to tell the Client about products or Services which may be of interest; for internal administration and operations; and for planning, research or marketing; and
      • disclose information about the Client to government or regulatory bodies or otherwise where this is required or authorised by law; to persons or entities involved in maintaining, reviewing and developing TE’s business systems, procedures and infrastructure; to debt collecting agencies, TE’s partners, agents, contractors and advisers, and otherwise where the Client consents or as permitted by law.

11. Intellectual Property and Confidentiality
    • You acknowledge that all intellectual property in the Services and the Estimate are our sole property.
    • You must not advertise or use our name, trademarks or other intellectual property in any manner without our prior written consent and must immediately ceasing using them at our request. You must only use our Estimate for the Project.
    • You must keep all information we provide to you that is not commonly known to the public, including our prices, absolutely confidential.
    • We agree to keep all Client Information you provide to us that is not commonly known to the public, including your prices and margins, absolutely confidential and use it solely for the purpose of preparing the Estimate.
12. Miscellaneous
    • The Client warrants that the person who signs or authorises the quote for estimate issued by TE has full power and authority to do so on behalf of the Client
    • The laws of Queensland, without reference to “choice of law” principles, govern these engagement terms. You and we submit to the non-exclusive jurisdiction of the courts of that place.
    • Other than clause 3, time is not of the essence under these engagement terms.
    • A reference to “includes”, “including”, “in particular” or “such as” are to be read as if followed by the words “without limitation”.
    • All rights and powers enjoyed by us and any discretion, consent or decision to be made by us pursuant to these engagement terms may be exercised by us in our absolute discretion and may be given or withheld subject to conditions. All approvals by us are only effective and binding when given in writing by an authorised officer.
    • If any provision or part of any provision of these terms is unenforceable (including any of the sub-clauses in clause 5) then it will be severed from the rest and such unenforceability does not affect any other part of such provision or any other provision of these terms.
    • You irrevocably appoint us and our representatives as your attorney (Attorney) to do any or all of the following on your behalf and in your or the attorney’s name if you default on your payment obligations to us:

(a)     anything which the Attorney considers necessary or expedient to give effect to these engagement terms or any other agreement with you, or to perfect or register these engagement terms or any other agreement with you, including by signing any document for that purpose;

(b)     execute and register a caveat over any real property owned by you to support any debt owing to us pursuant to these engagement terms or any other agreement with you; and

(c)               anything which an Attorney is expressly empowered to do under these engagement terms or any other agreement with you.

• You agree to ratify anything done by the Attorney under this power of attorney. An Attorney may delegate its powers (including the power to delegate) to any person for any period and may revoke the delegation.
• You must indemnify us for all costs (including legal costs on a solicitor own client basis) we incur arising either during the term of this Agreement from you breaching these engagement terms, in us enforcing these engagement terms or upon termination.
• These engagement terms apply notwithstanding any forbearance or failure by us to enforce any of the terms, any course of conduct by the parties and despite any industry practice to the contrary.
• If you are a trustee or if any party gives us a guarantee and indemnity as a trustee, then the following provisions shall apply:

(a)     you shall be personally liable for the performance of all obligations and undertakings under these engagement terms and/or under any guarantee given by you;

(b)     you warrant that you have full, complete and valid authority pursuant to the trust to enter into the relevant supply contract and/or any relevant guarantee or indemnity;

(c)     notwithstanding that there is no reference to a specific trust our rights of recourse shall extend to both your assets personally and the assets of the trust; and

(d)     you undertake to us that your rights of indemnity against the trust assets have not been excluded by the provisions of the trust or by any breach of trust or otherwise and that you will not release or otherwise prejudice such rights of indemnity.

• In these terms of supply, terms set out in bold in the left-hand column of the table in a Quote for an Estimate issued by TE to you have the meaning set out in the corresponding row in the right-hand column and the following terms apply:

GST means any consumption tax imposed by any government or government agency, whether at the point of sale or at some other occurrence, by whatever name, which operates during the time we render Services to you and includes a goods and Services tax, an indirect tax and value added tax.

Client Information means information provided to TE by the Client to be included in the Estimate, such as rates of pay, expected margin, costs of goods to be supplied by the Client as part of the Project, etc.

Parties means us and you.

PPS Law means:

(a)               the PPSA and any regulation made at any time under the PPSA, including the PPS Regulations (each as amended from time to time); and

(b)               any amendment made at any time to any other legislation as a consequence of a law or regulation referred to in paragraph (a).

PPS Regulations means the Personal Property Securities Regulations 2010 (Cth).

PPSA means the Personal Property Securities Act 2009 (Cth).

PPSR means the Personal Property Securities Register. 

Services means any Estimate or other Service provided by us to the Client.

• In these terms of supply, unless the context requires otherwise, the following words and expressions (and grammatical variations of them) have the same meanings given to them in the PPSA or the PPS Regulations (as applicable): Accounts, Accessions, Financing Change Statement, Financing Statement, Security Interest and Verification Statement.