Terms and Conditions

1. Definitions

• “Company” means Meredith Nursery, its successors, assigns, or any person acting on behalf of and with the authority of Meredith Nursery.
• “Client” refers to the individual or entity ordering services or products as outlined in any invoice, document, or order. Where more than one Client exists, this term refers to all parties jointly and severally.
• “Works” means all services (including consultation, preparation, delivery, or installation) and/or products provided by the Company to the Client at their request. These terms may be used interchangeably where context allows.
• “Price” refers to the total cost (plus GST where applicable) agreed upon by both parties for the Works, in accordance with Clause 5.
• “GST” means Goods and Services Tax as defined under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

2. Acceptance

• The Client is deemed to have accepted and is immediately bound by these terms and conditions upon placing an order or accepting delivery of any Works.
• These terms can only be amended in writing and with the agreement of both parties. They take precedence over any conflicting terms in other documents.
• If the Client is a tenant (not the owner of the property where services are to be rendered), they warrant that the property owner’s consent has been obtained. The Client accepts personal responsibility for all payments and indemnifies the Company against claims from the property owner, unless caused by the Company’s negligence.
• The Client agrees to provide evidence upon request that they either:
  a. own the land or premises, or
  b. have obtained appropriate permissions from the landowner.
• If the Works require access to neighboring property not owned by the Client, it is the Client’s responsibility to obtain permission from the property owner. Any costs incurred due to denied access will be borne by the Client.

3. Electronic Transactions

• Electronic signatures shall be considered valid as long as both parties comply with Section 9 of the Electronic Transactions Act 2003 or any related legal provisions.

4. Change of Ownership

• The Client must provide at least fourteen (14) days’ prior written notice to the Company of any intended change in ownership or contact details. The Client remains liable for any loss resulting from failure to notify the Company.

5. Price and Payment

• The Price will be either:
  a. as stated in invoices issued by the Company; or
  b. the Company’s quoted amount (valid for 30 days), provided the Client accepts the quote in writing within that time.
• Unless specified otherwise, quotations do not include:
  • unexpected site conditions (e.g., concrete base, drainage);
  • costs for extra excavation or disposal.
• The Price may be adjusted if:
  a. the Client requests changes to the Works or Materials;
  b. unforeseen site conditions arise (e.g., buried tree roots, hard rock, weather delays);
  c. costs of labor or materials increase beyond the Company’s control.
• Any variations will be documented and added to the invoice. The Client must respond within ten (10) working days. Failure to do so may result in automatic acceptance.
• A non-refundable deposit may be required to confirm booking. This amount will be deducted from the final invoice.

Payment terms may include:

• On completion of the Works;
• Prior to commencement;
• Progress payments based on the schedule provided by the Company, which may include:
  • Deposit;
  • Material cost payment at commencement;
  • 50% interim payment (for Works lasting over five days);
  • Final balance upon completion.
• If no other agreement is made, payment is due seven (7) days from the invoice date.

Accepted payment methods include:
Cash, bank transfer, cheque, credit card (surcharge may apply), or any other method agreed between both parties.

• The Client may not deduct or withhold payment, even in the event of a dispute.
• GST is not included in the Price unless explicitly stated. The Client agrees to pay any applicable GST or other taxes in addition to the agreed Price.

6. Delivery of the Works

• Start Date: Contractor must start the works ASAP, unless delayed by uncontrollable events (e.g., client delays).
• Extension of Time: If the contractor gives written notice, timelines can be extended for reasons outside their control.
• Delivery Costs: May or may not be included in the price—up to the contractor’s discretion.
• Instalments: Works may be delivered in parts and invoiced accordingly.
• Delays: Time estimates are just estimates. Contractor not liable for delays unless caused solely by the client.
• Client Cancellation/Reschedule: Requires at least 48 hours’ notice.
• Third-Party Scheduling: Client should allow for potential delays before scheduling third-party work.

7. Risk

• Material Risk:
  • Passes to the client upon delivery.
  • If contractor installs materials, they are responsible until the job is complete.
• Unattended Delivery: Client assumes full risk if materials are delivered to an unattended location.
• Contaminated Sites: Contractor may charge extra or refuse cleanup if health hazards like animal waste exist.
• Client-Supplied Materials: Contractor not liable for any defects or issues.
• Storage: Client must provide safe storage on-site.
• Site Suitability: Client guarantees the structure is suitable for installation.
• Advice Ignored: If client disregards contractor advice, contractor isn’t responsible for outcomes.
• Spray Drift: Some unintended damage may happen; contractor not liable.
• Plant Maintenance: Contractor not responsible if plants die due to client neglect.
• Lawn Mowing: Client must prepare the area (e.g., mark or retract sprinklers).
• Material Characteristics: Acknowledge materials may fade, warp, stain, etc.
• Machinery Use: Loud, dusty machines may be used. Client should prepare accordingly (e.g., close windows).

8. Client’s Responsibilities

• Material Specifications: Client must ensure all details are correct.
• Waste Removal: Contractor isn’t responsible for waste removal or hazardous materials like asbestos.
• Environmental Disclosure: Client must inform of nearby sensitive environments.
• Facilities: Client must provide power, lighting, toilet, eating, and first aid if needed.

9. Access

• Site Access: Client must ensure clear access for the contractor at all times.
• Damage: Contractor only liable for damage caused by negligence.
• Working Hours: Access only allowed during standard working hours.

10. Surplus Materials

• Ownership:
  • New materials used.
  • Demolished materials = client’s.
  • Surplus contractor materials = contractor’s, unless paid for.

11. Dial Before You Dig

• Underground Services: Must be located before work begins.
• Damage Liability: Contractor not liable for damage to unmarked underground services.
• Locator Costs: If contractor arranges it, client pays extra.

12. Underground Locations

• Client’s Duty: Must identify and mark all underground services (e.g. electrical, gas, water, sewer).
• Indemnity: Client indemnifies the Contractor against any damage to underground services not clearly marked.

13. Compliance with Laws

• Both parties must comply with all relevant laws and regulations.
• Client’s Responsibility:
  • Obtain necessary licenses/approvals.
  • Ensure the site complies with WHS (Workplace Health & Safety) and relevant safety standards.

14. Title (Ownership of Materials)

• Ownership of materials remains with the Contractor until:
  • Full payment is made.
  • All Client obligations are met.
• Until then:
  • Client acts as bailee, must return items upon request.
  • Must hold insurance proceeds in trust for Contractor.
  • Cannot sell, convert, or dispose of materials improperly.
  • Contractor has right to enter premises and retrieve materials.

15. Personal Property Securities Act 2009 (PPSA)

• Agreement forms a security interest under the PPSA.
• Client must assist in registering and maintaining PPSA interests.
• Contractor excludes certain rights under PPSA (e.g., no notice obligations).
• Client waives certain rights (e.g., to verification statements).
• Contractor has broad powers to protect its security interests.

16. Security and Charge

• Client charges all current and future assets to secure obligations.
• Client must indemnify Contractor for enforcement costs.
• Contractor may act as Client’s attorney to enforce this clause.

17. Defects, Warranties & CCA (Competition and Consumer Act)

• Inspection & Notice: Client must inspect on delivery and notify defects within 7 days.
• Complies with non-excludable consumer guarantees under the CCA.
• If defects arise:
  • Contractor may repair, replace, or refund as appropriate.
  • Liability is limited unless otherwise stated or required by CCA.
• Exclusions: No liability for:
  • Misuse or poor maintenance by the Client.
  • Acts of God, normal wear and tear, etc.
• Second-hand goods: Generally sold as-is, unless Client is a consumer under CCA.

18. Intellectual Property

• Ownership: The Contractor retains full copyright ownership of all designs, drawings, plans, schedules, and products they create for the Client. The Client may only use these materials with the Contractor’s express written permission.
• Client Warranty: The Client guarantees that any designs, specifications, or instructions they provide to the Contractor will not infringe on any patents, trademarks, or registered designs. The Client will indemnify the Contractor against any third-party infringement claims arising from the Client’s instructions.
• Marketing Use: The Contractor may use any created designs, documents, or products for marketing or competition entries without cost to the Client.

19. Default and Consequences of Default

• Interest on Overdue Payments: Interest will accrue daily on overdue invoices at 2.5% per month (compounded monthly at the Contractor’s discretion), both before and after any legal judgment.
• Recovery Costs: The Client must reimburse the Contractor for all costs related to recovering overdue payments, including administrative fees, legal costs, default fees, and bank dishonour fees.
• Reversed Transactions: If a payment made by the Client is reversed and found to be illegal or fraudulent, the Client remains liable for the amount plus any additional recovery costs.
• Immediate Payment and Cancellation Rights: The Contractor may cancel any unfulfilled orders and demand immediate payment of all outstanding amounts if:
  • Payments become overdue or the Client is judged unlikely to pay on time;
  • The Client exceeds any credit limit set by the Contractor;
  • The Client becomes insolvent, bankrupt, or enters into creditor arrangements;
  • A receiver, liquidator, or similar officer is appointed for the Client or their assets.

20. Cancellation

• Suspension/Termination for Breach: The Contractor can suspend or terminate services if the Client breaches any obligations (including payment). The Contractor is not liable for any Client losses caused by such actions.
• Pre-Commencement Cancellation: The Contractor may cancel the contract or delivery before starting the work by written notice. The Contractor will refund any payments received minus amounts for already performed work, without liability for further loss or damage.
• Client-Initiated Cancellation: If the Client cancels, they are responsible for all direct and indirect losses incurred by the Contractor, including lost profits.
• No Cancellation After Production Starts: Orders for custom or non-stock products cannot be canceled once production has started or an order has been placed.

21. Privacy Act 1988 (Australia)

This clause explains how personal and credit information about the Client may be collected, shared, and used.

• Credit Information Collection: The Contractor may obtain a credit report from a Credit Reporting Body (CRB) about the Client.
• Information Sharing: The Contractor can share information with other credit providers and related entities:
  • To assess applications
  • To notify of defaults
  • To check if the Client is in default elsewhere
  • To assess creditworthiness
• Use of Information: The Client’s credit info may be used for:
  • Providing services (“Works”)
  • Verifying credit/payment status
  • Managing payments
  • Collecting debts
• What CRBs Receive:
  • Personal and credit-related data
  • Default status or overdue debts
  • Serious credit infringements
  • Overdue amounts ($150+)
• Client Rights:
  • Can request a copy or correction of personal info
  • Can opt out of direct marketing
  • Can request destruction of personal info (with some legal exceptions)
  • Can complain to the Contractor or escalate to the Office of the Australian Information Commissioner (OAIC)

22. Dispute Resolution

Outlines how disputes should be handled:

• Initial Step: Written notice of dispute must be provided.
• Resolution Meeting: Parties must meet within 14 days to resolve the issue.
• Unresolved Dispute: If not resolved, either party can refer it to arbitration.
• Arbitration:
  • Handled by a single arbitrator
  • Appointed by the President of the Institute of Arbitrators Australia
  • Conducted under their Commercial Arbitration Rules

23. Service of Notices

Describes how legal notices under this contract must be delivered:

• Valid Methods:
  • In person
  • At the listed address
  • By registered post
  • By fax (with confirmation)
  • By email (to the last known address)
• Postal Assumption: Notices by post are assumed to be received in the normal delivery timeframe unless proven otherwise.

24. General

Miscellaneous but important legal provisions:

• No Waiver: Not enforcing a term once doesn’t waive the right to enforce it later.
• Severability: If a part is invalid, the rest remains enforceable.
• Governing Law: Governed by the laws of Western Australia and under Perth Court jurisdiction.
• Liability: Contractor is not liable for indirect losses (like lost profits). If liable, compensation is capped at the value of the Works.
• Assignment/Subcontracting:
  • Neither party can assign the contract without written consent.
  • Contractor can subcontract but retains full responsibility.
  • Client cannot instruct subcontractors directly.
• Amendments: Contractor may update terms by notifying the Client. Changes take effect upon acceptance or next request for Works.
• Force Majeure: Neither party is liable for events beyond control (e.g. natural disasters, war, strikes).
• Authority: Both parties confirm they’re legally authorized and financially capable of entering into this agreement.