L.J. Ellery Roofing

Terms & Conditions of Trade

Terms & Conditions of Trade

  1. Definitions

1.1    “L.J Ellery” means L.J. Ellery Roofing Pty Ltd (ACN 157 688 198) of 441 Buckingham Street, North Albury, NSW, 2640.

1.2    “Client” means the person named in the Proposal.

1.3    “GST” means the goods and services tax.

1.4    “Materials”, “Works” or both means all works and materials agreed to be supplied by L.J. Ellery as set out in the Proposal.

1.5    “Price” means the price payable for the Works and Materials.

1.6    “Proposal” means L.J. Ellery’s proposal, quote, order or other similar document which sets out the details of the Works and Materials and is provided with or attached to these Terms and Conditions.

  1. Acceptance

2.1    The Client may accept the Proposal and these Terms and Conditions (which are located at L.J. Ellery’s website at www.ljelleryroofing.com.au) verbally or in writing.

2.2    For the avoidance of doubt, it is not necessary for the Proposal to be signed unless L.J. Ellery insists on it.

2.3    The Client is bound by these Terms and Conditions if the Client continues to act in a way that is consistent with the arrangement and discussions with L.J. Ellery in relation to the Proposal and L.J. Ellery has incurred time and expense in procuring Materials or commenced any part of the Works in accordance with the Proposal as discussed and approved by the Client.

2.4    The Client is responsible for selecting the Materials the Client wishes to be supplied by L.J. Ellery. If the Client has any specific concerns about how the Materials fade, deteriorate, weather or age, the Client must not accept the Proposal without bringing their concerns to L.J. Ellery.  Otherwise, the Client takes on the whole of the risk of the selection of the selecting Materials for which L.J. Ellery has no liability whatsoever.

  1. Quotes
  • Quotes provide by L.J. Ellery will set out all costs and expenses for the Works and Materials as contained in the Proposal and the following shall be set out;
  • Crane, scaffold, edge protection and/or access hire (to all roofs and walls) by a licensed contractor or by L.J. Ellery;
  • Standard access for deliveries has been assumed; and
  • No packing is allowed for roofs or walls. Up to 20mm packing will be allowed for cladding.  Anything over 20mm will be charged as a variation to the quote.
  • All quotes are worked on the basis of a straight run during the Works, if no clear working run is provided for the Works, any breaks or stoppage by the Client, builder, architect, project manager, or any other third party, shall attract additional charges and L.J. Ellery reserves the right to charge for these breaks or stoppages in the Works.
  • The quote is based on clear working condition and complete access. All hourly delays will be charged at $100.00 per hour plus GST per employee or contractor engaged by L.J. Ellery, (not limited to moving scaffold, clearing walkways, and waiting for the site for the Works to be available due to works being completed by other contracted parties).
  • All L.J. Ellery quotes and estimations are based on a working week Monday to Friday, 7:30 am to 4:30 pm. Any additional hours requested by the client will come with an acceleration fee of $50.00 per employee or contractor engaged by L.J. Ellery.
  • All L.J. Ellery quotes and estimations are based on standard work flow practices. Any Works requested out of the normal roofing sequence may be subject to additional charges.
  • Standard and fair roofing practice, in line with the Council of Standards Australia, are allowed for in the quote, unless otherwise specified. Additional charges may apply if deemed appropriate by L.J. Ellery to step outside the Australian Standards and good practice in the Client’s particular circumstances.
  1. Cancellations and variations

4.1    The Client may not cancel or vary any Works and/or Materials once the Client has confirmed acceptance of the Proposal unless L.J. Ellery consents in writing.  L.J. Ellery reserves the right to charge for any loss or damage (whether direct or indirect) suffered or incurred by L.J. Ellery as a result of, or in connection with, the cancellation including but not limited to the loss of profits.

4.2    Subject to clause 16, L.J. Ellery may cancel any contract to which these Terms and Conditions apply or cancel delivery of Works and/or Materials at any time before the Works are commenced by giving written notice to the Client.  On giving such notice L.J. Ellery will (if applicable) repay to the Client any moneys paid by the Client, less any amount owing by the Client to L.J. Ellery for any Works already performed.  L.J. Ellery will not be liable for any loss or damage whatsoever arising from such cancellation.

4.3    These Terms and Conditions will prevail to the extent of any inconsistency with any other document or agreement between the Client and L.J. Ellery in relation to the Works.

  1. Price and Payment

5.1    Prices in the Proposal are based on rates and costs as at the date of the Proposal and for a period of fourteen (14) days thereafter.

5.2    L.J. Ellery reserves the right to increase the Price and the Client must pay the increases as notified by L.J. Ellery:

(a)     if a variation to the Materials is requested or required by the Client;

(b)     if a variation to the Works not originally scheduled (including any applicable plans or specifications) is requested by the Client;

(c)     where additional works or alterations are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to termite damage, rotten timber, mould, asbestos, re-framing of the roof members, structural works being required, hidden pipes and the like) which are only discovered after commencement of the Works or non-standard construction or the existence of any sub-standard timber or other materials;

  • in the event of increases to the cost of labour, materials and/or overheads which are beyond L.J. Ellery’s control (including, but not limited to, inclement or extreme weather conditions or Project delays relating to the acts or omissions of the Client’s employees, agents or contractors); and

(e)     where L.J. Ellery is requested by the Client to perform any of the Works outside L.J. Ellery’s normal working hours or at times when L.J. Ellery must pay labour rates in excess of ordinary time rates or L.J. Ellery’s standard rate of remuneration or reimbursement to L.J. Ellery’s employees or contractors.

5.3    A non-refundable payment of fifty percent (50%) of the Project price must be paid to L.J. Ellery not less than fourteen (14) days prior to the commencement of any Works on site and prior to L.J. Ellery ordering any Materials.  The non-refundable payment is made up of 10% of the value of the Works and 40% of the value of the Materials.

5.5    Time for payment for the Works is of the essence and must be made in accordance with the due dates given in the Proposal.

5.6    Payment may only be made by cash, electronic transfer, direct on-line banking transfer, or credit card.

5.7    Unless otherwise stated, the Price does not include GST.  In addition to the Price the Client must pay an amount equal to any GST payable by L.J. Ellery in relation to the supply of the Works and/or Materials.  The Client must pay GST, without deduction or set off of any other amounts.  In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

5.8    Where the Client enters an agreement to finance part of or all of the cost of the Works with a third party finance provider the finance agreement will be between the Client and the finance provider and L.J. Ellery is not a party to the terms and conditions of that agreement.

  1. Reliance on information

6.1    The Client acknowledges that L.J. Ellery relies on information and documents provided by the Client and the Client’s employees, contractors, agents and advisers being accurate and complete as the basis for its preparation of the Proposal and the making of any recommendations for the purchase of Materials or the performance of the Works.

6.2    The Client must not rely on any statements or representations made by L.J. Ellery’s officers, employees, agents or contractors in relation to the Materials or the Works unless it has been provided to the Client in writing which L.J. Ellery has agreed the Client may rely on for a specific purpose, which can be provided at additional cost.

  1. Delivery

7.1    Upon acceptance of the Proposal L.J. Ellery will provide the Client with a work schedule, as part of the Project and this will not be varied except in accordance with clause 4. L.J. Ellery will complete the Works within a time which is reasonable in all circumstances.

7.2    It is the Client’s responsibility to make the site available and ready for the commencement of the Works and to provide safe access to the site to L.J. Ellery on the agreed date and time.  The Client must provide:

  • clear and unrestricted access to the property to perform the agreed works;
  • access to electricity;
  • access to any other services required for the works.

If installation is interrupted by the failure of the Client to provide any of the above, the Client must pay any additional costs to the Price.

7.4    The Works commencement date will be delayed and/or the completion date extended by whatever time is reasonable in the event that L.J. Ellery gives the Client written notice that completion is likely to be delayed by reason of an event beyond L.J. Ellery’s control, including but not limited to any failure by the Client to:

(a)     adhere to the agreed work schedule;  

(b)     make a selection of the Materials within the time frame requested by L.J. Ellery;

(c)     have the site ready for the Works,

(d)     notify L.J. Ellery that the site is ready; and/or

(e)     any other event or circumstance.

7.5    The Client must take delivery, by receipt or collection, of the Materials whenever they are tendered for delivery.  In the event that the Client is unable to take delivery of the Materials, then L.J. Ellery may charge a reasonable fee for re-delivery and/or storage calculated at the rate of one and a half (1.5%) per month of the value of the Materials, which the parties agree is a reasonable estimate of the cost to L.J. Ellery.

7.6    Time for completion of the Works is not of the essence.  Any time or date given by L.J. Ellery to the Client is an estimate only.  L.J. Ellery will not be liable for any loss or damage whatsoever due to failure by L.J. Ellery to deliver the Works (or any part of them) promptly or at all, where failure arises out of or in connection with circumstances beyond the reasonable control of L.J. Ellery or due to the act or omission of the Client.

  1. Surplus Materials

Unless otherwise agreed in writing by the parties the Client acknowledges that the Materials that L.J. Ellery brings to the site which are surplus to the Works remain the property of L.J. Ellery which will be removed by L.J. Ellery.  

  1. Risk

9.1    L.J. Ellery will maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk in the Works (including Materials) will pass to the Client.

9.2    L.J. Ellery may provide notification to the Client of the intention to store Materials and/or equipment and tools onsite, to which the Client will be responsible for allocating a suitable area for storage and taking all reasonable precautions to ensure the Materials and/or equipment and tools are safe and secure. In the event that any Materials and/or equipment and tools are lost, damaged or destroyed, then replacement of the Materials and/or equipment and tools will be at the Client’s cost and expense.

9.3    L.J. Ellery will have public liability insurance of at least $5,000,000 in place in relation to the Works.  It is the Client’s responsibility to ensure that it is similarly insured in relation to the site at which the Works are carried out.

9.4    L.J. Ellery will take due care and exercise skill and diligence to prevent damage to the Client’s property and its perimeters.  However, the Client acknowledges that existing landscaping and gardens may be disturbed in the course of accessing the property and carrying out the Works.  Where skip bins are required, these may impede the Client’s access or use of driveways and parking areas and potentially cause lawn discolouration where these are placed directly on lawns.  The Client accepts this risk and all liability for such disturbances, minor damage and inconveniences.

  1. Title

10.1 L.J. Ellery and the Client agree that ownership of the Materials will not pass until:

(a)     the Client has paid L.J. Ellery all amounts owing to L.J. Ellery, and

(b)     the Client has met all other obligations to L.J. Ellery.

10.2 The Client further agrees:

(a)     until ownership of the Materials passes to the Client in accordance with clause 9 the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to L.J. Ellery on request;

(b)     the Client holds the benefit of any insurance policy owned by it that covers the Materials on trust for L.J. Ellery and must pay to L.J. Ellery the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;

(c)     the production of these Terms and Conditions by L.J. Ellery will be sufficient evidence of L.J. Ellery’s right to receive the insurance proceeds direct from the insurer without the need for any person dealing with L.J. Ellery to make further enquiries;

(d)     the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for L.J. Ellery and must pay or deliver the proceeds to L.J. Ellery on demand;

(e)     the Client must not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of L.J. Ellery and must sell, dispose of or return the resulting product to L.J. Ellery as it so directs;

(f)      unless the Materials have become fixtures the Client irrevocably authorises L.J. Ellery to enter any premises where L.J. Ellery believes the Materials are kept and recover possession of the Materials;

(g)     L.J. Ellery may recover possession of any Materials in transit whether or not delivery has occurred;

(h)     the Client will not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of L.J. Ellery; and

(i)      L.J. Ellery may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

  1. Personal Property Securities Act 2009 (Cth) (PPSA)

11.1 In this clause financing statement, financing change statement, security agreement and security interest has the meaning given to it by the PPSA.

11.2 The Client 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 Materials that have previously been supplied and that will be supplied in the future by L.J. Ellery to the Client.

11.3 The Client 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 L.J. Ellery may reasonably require to:

(i)      register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii)     register any other document required to be registered by the PPSA; or

(iii)     correct a defect in a statement referred to in clause;  or

(b)     indemnify, and upon demand reimburse, L.J. Ellery for all costs and expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;

(c)     not register a financing change statement in respect of a security interest without the prior written consent of L.J. Ellery;

(d)     not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of L.J. Ellery; and

(e)     where applicable, immediately advise L.J. Ellery of any material change in its business practices of selling the Materials which may result in a change in the nature of proceeds derived from such sales.

11.4 L.J. Ellery is not obliged to give the Client any notice, document or information under the PPSA unless the provision of the notice, document or information is required by the PPSA and cannot be excluded. The Client consents to waive any right it may have to receive such notice, copy of document or information.

11.5 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.

  1. Warranty

12.1 Subject to clause 3, L.J. Ellery warrants that the Works will be completed in accordance with the specifications of the manufacturer of the Materials, applicable Australian building standards and any plans and specifications provided by any third party engaged by the Client, including any builder or architect.

12.2 Only the workmanship component of the Works is warranted and for a period of six (6) years from the completion date of the Works as evidenced in writing by the warranty certificate provided by L.J. Ellery, and if requested by the Client.

12.3 The Client may not make a claim against L.J. Ellery if:

(a)     the Client owes any money to L.J. Ellery in respect of the Works and/or Materials;

(b)     the Client (whether itself or through a third party) has modified, altered, removed or added to any part of the Works and/or Materials – i.e. the warranty is void;  

(c)     L.J. Ellery does not receive notice in writing from the Client within five (5) days of the Client becoming aware of, or ought reasonably be aware of, the possibility of there being a warranty claim;

(d)     the Client has not allowed L.J. Ellery a reasonable opportunity to inspect and assess the alleged condition, defect or damage;

(e)     the claim arises out of or is connected with fair or normal wear and tear;

(f)      the claim arises out of or is connected with incorrect, inaccurate or negligent information, advice or building works provided by the Client or its agents, contractors or advisers including but not limited to defective plans, poor or negligent design, sub-standard building works supporting the roof structure or support;

(g)     the claim arises out of or is connected with any act or omission of L.J. Ellery’s employees or contractors where the act or omission has been carried out pursuant to instructions given by the Client’s employees, agents or contractors;

(h)     the claim arises out of or is connected with water leaks or damage to roofs with lower than five (5) degree pitch;

(i)      the claim arises out of or is connected with water leaks or damage to roofs for reasons other than poor workmanship;

(j)      the Client has not maintained the Works and/or Materials in accordance with any maintenance guidelines recommended by or manual provided (if requested by the Client) by L.J. Ellery; or

(k)     the claim arises out of or is connected with extreme weather conditions such as flood, fire, cyclone, heavy storm or lightning or consequential causes or associated conditions such as broken tree branches or trees or flying objects or debris.

12.4 To the extent permitted by law, L.J. Ellery does not provide any warranty with respect to the Materials.  Any warranty or certificate given by L.J. Ellery in respect of the Materials is given on behalf of the manufacturer.  All warranty claims in respect of the Materials must be submitted directly to the manufacturer unless L.J. Ellery has agreed in writing to process any such warranty claims on behalf of the manufacturer.

  1. Liability

13.1 The Client must inspect all Materials on delivery or the Works on completion of the Works and must within seven (7) days of delivery or completion (as applicable) notify L.J. Ellery in writing of any defect or damage, shortage in quantity or failure to comply with the description or Proposal. Upon such notification the Client must allow L.J. Ellery to inspect the alleged defect or damage.

13.2 The Client acknowledges that Materials supplied may exhibit variations in shade, colour, surface and finish, and may fade or change colour over time.  L.J. Ellery will make every effort to match batches of product supplied, or sale samples and the final product supplied, in order to minimise such variations but will not be liable for any loss, damages or costs howsoever arising where such variations occur.  The Client also acknowledges that Materials will weather and deteriorate as part of a natural process of wear and tear. This includes flat roofs that may develop ‘waves’.  The process of wear and tear occurs at different rates depending on the environment.  L.J. Ellery is not liable whatsoever for wear and tear that is considered normal having regard to the environment.

13.3 Under applicable State, Territory and Commonwealth Law (including, without limitation the Competition and Consumer Act 2010 (Cth) (“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).

13.4 L.J. Ellery acknowledges that nothing in these Terms and Conditions purports to modify or exclude the Non-Excluded Guarantees.

13.5 Except as expressly set out in these terms and conditions and the Non-Excluded Guarantees, L.J. Ellery makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials and/or Works and L.J. Ellery’s liability in respect of the supply of the Materials and/or Works is excluded to the fullest extent permitted by law.

13.6 If the Client is a consumer within the meaning of the CCA, to the extent permitted by law L.J. Ellery’s liability is limited to, at the discretion of L.J. Ellery:

  • in relation to the Materials:

(i)      repair or replacement of the Materials or equivalent materials

(ii)     pay the cost of repair or replacement of the Materials or equivalent materials, or

(iii)     refund any money paid by the Client for the Materials, and/or

  • in relation to the Works, supply of the Works again or payment of the cost of having the Works supplied again or refund any money paid by the Client for the Works but only to the extent the refund takes into account the value of the Works and Materials provided to the Client which were not defective.

13.7 If the Client is not a consumer within the meaning of the CCA, L.J. Ellery’s liability for any defect or damage in the Materials is limited to, at the discretion of L.J. Ellery:

(a)     the value of any express warranty or warranty card provided to the Client by L.J. Ellery; or

(b)     any warranty to which L.J. Ellery is entitled to claim against the manufacturer, if L.J. Ellery did not manufacture the Materials.

13.8 To the extent L.J. Ellery is unable to exclude its liability and to the extent permitted by law:

(a)     L.J. Ellery will not be liable for any indirect and/or consequential loss and/or expense (including loss of profit) suffered or incurred by the Client; and

(b)     L.J. Ellery’s aggregate liability for all claims under these terms and conditions will be limited to the Price of the Works and/or Materials paid by the Client.

13.9 L.J. Ellery reserves the right to charge a call out fee at the rate of $100.00 per hour plus GST per employee or contractor engaged by L.J. Ellery calculated from base to base in relation to any call outs by the Client for L.J. Ellery to inspect the Works and/or Materials in relation to a claim for defective Materials or breach of warranty if upon investigation L.J. Ellery denies the claim.

  1. Returns

14.1 The Client is responsible for the selection of the Materials.  Under no circumstances will L.J. Ellery accept the return or replacement of the Materials selected by the Client or be liable for the selection made by the Client.

14.2  Returns of defective Materials will only be accepted if:

(a)     the Client has complied with the provisions of clause 2.4;

(b)     L.J. Ellery has agreed with the Client that the Materials are defective;

(c)     the Materials are returned within a reasonable time at the Client’s cost; and

(d)     the Materials are returned in as close a condition to that in which they were delivered as is possible and in saleable condition.

  1. Intellectual Property

15.1 The Client warrants that all designs, specifications or instructions given to L.J. Ellery will not cause L.J. Ellery to infringe any patent, registered design, trademark or intellectual property rights of a third party in the execution of the Client’s order and the Client agrees to indemnify L.J. Ellery against any action taken against L.J. Ellery in respect of any such infringement.

15.2 The Client agrees that L.J. Ellery may (at no cost) use for the purposes of marketing or entry into any competition, any documents, photographs, designs, drawings, plans or products which L.J. Ellery has created for the Client.

15.3  The Client agrees that L.J. Ellery may photograph, video or record their work at the property from the beginning of the engagement until completion and may otherwise use any image or footage taken by L.J. Ellery of the Client’s property for marketing purposes.

  1. Default and Consequences of Default

16.1 Interest on overdue invoices will 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 L.J. Ellery’s sole discretion such interest will compound monthly at such a rate) after as well as before any judgment.

16.2 If the Client owes L.J. Ellery any money the Client will indemnify L.J. Ellery from and against all costs and disbursements incurred by L.J. Ellery in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, L.J. Ellery’s contract default fees, and bank dishonour fees).

16.3 Without prejudice to any other remedies L.J. Ellery may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions L.J. Ellery may suspend or terminate the supply of Works and/or Materials to the Client. L.J. Ellery will not be liable to the Client for any loss or damage the Client suffers because L.J. Ellery has exercised its rights under this clause.

16.4 Without prejudice to L.J. Ellery’s other remedies at law L.J. Ellery will be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to L.J. Ellery will, whether or not due for payment, become immediately payable if:

(a)     any money payable to L.J. Ellery becomes overdue, or in L.J. Ellery’s opinion the Client will be unable to make a payment when it falls due;  

(b)     the Client becomes insolvent or bankrupt, 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

(c)     a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

  1. Privacy

17.1 The Client agrees that L.J. Ellery may obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to any credit services to be provided by L.J. Ellery or a third party finance provider.

17.2 The Client agrees that L.J. Ellery may exchange information about the Client with other credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a)     to assess the creditworthiness of the Client;

(b)     to notify other credit providers of a default by the Client, and/or

(c)     to exchange information with other credit providers as to the status of the Client’s credit account, where the Client is in default with other credit providers.

The Client understands that the information exchanged can include anything about the

Client’s creditworthiness, credit standing, credit history or credit capacity that credit

providers are allowed to exchange under the Privacy Act 1988 (Cth) (the Privacy Act).

17.3 The Client agrees that personal credit information provided may be used and retained by L.J. Ellery for the following purposes (and for other purposes as agreed between the Client and L.J. Ellery or required by law from time to time):

(a)     the provision of Works and/or Materials;

(b)     the marketing of Works and/or Materials by L.J. Ellery, its agents or distributors;

(c)     analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works and/or Materials;

(d)     processing of any payment instructions, direct debit facilities and/or credit facilities;

(e)     requested by the Client; and/or

(f)      enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Works and/or Materials.

17.4 L.J. Ellery may give information about the Client to a credit reporting agency for the purpose of obtaining a consumer credit report about the Client.

  1. Compliance with Laws

18.1 Both the Client and L.J. Ellery agree that they will at all times ensure that they comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including occupational health and safety laws relating to building/construction sites, and any other relevant safety standards or legislation. Should either party fail to comply with this clause causes the other party to incur costs, then such costs will be the responsibility of the party in breach.

18.2 The Client is responsible for and must obtain (at the cost and expense of the Client) all licences and approvals that may be required for the Works.

18.3 At L.J. Ellery’s sole discretion, if there are any disputes or claims for unpaid Works then the provisions of the relevant state legislation for the Building and Construction Industry Security of Payments Act may apply.

18.4 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Act, except to the extent permitted by the Act where applicable.

  1. General

19.1 The failure by L.J. Ellery to enforce any provision of these terms and conditions will not be treated as a waiver of that provision, nor will it affect L.J. Ellery’s right to subsequently enforce that provision.  If any provision of these terms and conditions is invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.

19.2 The rule of interpretation which sometimes requires that an agreement be interpreted to the disadvantage of the party which put the agreement forward, does not apply.

19.3 The Client will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by L.J. Ellery nor to withhold payment of any invoice because part of that invoice is in dispute.

19.4 L.J. Ellery may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

19.5 The Client agrees that L.J. Ellery may amend these terms and conditions at any time. If L.J. Ellery makes a change to these terms and conditions, then that change will take effect from the date on which L.J. Ellery notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for L.J. Ellery to provide any Works and/or Materials to the Client.

19.6 Neither party will be liable for failing to perform its obligations under this Agreement where the failure is 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. 

19.7 The Client 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.

19.8 These terms and conditions and any contract to which they apply will be governed by the laws of New South Wales and the Parties each irrevocably submits to the exclusive jurisdiction of the courts of New South Wales.