YKH Group Terms and Conditions of Trade

1.      Definitions

1.1.   “Agreement”  means the agreement between YKH Group and the Customer for the delivery of Goods and/or Services from time to time. It includes but is not limited to these T&Cs, a request for tender, tender submission, quotation, plans/designs, variation(s), and project timeline(s).

1.2.   “Authorised Representative” means a person(s) that YKH Group or the Customer authorises to act on their behalf, and includes a person(s) that is held out to have such authority.

1.3.   "Customer" means the person/s or entity(s) buying the Goods and/or Services from YKH Group. If there is more than one Customer, it is a reference to each Customer jointly and severally.

1.4.   “Goods”  means any item, material, product, good, chattel, or fitting of any kind supplied by YKH Group to the Customer pursuant to the Agreement, as varied in accordance with Agreement.  

1.5.   "YKH Group"[MR1]  means YKH COATINGS PTY LTD (ACN 656 081 364) and/or YKH CEMENT RENDERING PTY LTD (ACN 626 104 694) as described in the Agreement, and/or their Related Entities, its successors and assigns.

1.6.   "Price" means the Price payable for the Goods and/or Services pursuant to the Agreement between YKH Group and the Customer, as varied in accordance with the Agreement.

1.7.   “Sub-Contractor”  means a 3^rd party that YKH Group engages to provide Goods and/or Services to the Customer.

1.8.   "Services" [JW2] means the services provided by YKH Group to the Customer pursuant to the Agreement, as varied in accordance with Agreement.

 

2.      Acceptance

2.1.   These T&Cs apply to each & every supply of Goods and/or Serviced between YKH Group and the Customer.

2.2.    The Customer accepts and is immediately bound by these T&Cs if the Customer:

2.2.1.  completes and returns a signed Agreement; or

2.2.2.  instructs YKH Group to proceed with the provision of Goods and/or Services after having received an offer for same.

2.3.   In accepting these T&Cs, the Customer also agrees and warrants:

2.3.1.  to abide by all of the terms of the Agreement;

2.3.2.  to abide by the project timeline (if any); and

2.3.3.  that they have had the opportunity to obtain independent legal advice prior to entering the Agreement.

2.4.   These T&Cs may only be amended with YKH Group’s consent in writing. They shall prevail to the extent of any inconsistency with any other document between the Customer and YKH Group.

2.5.   The Customer may request in writing different or additional Goods and/or Services, or a new project timeline. If so, YKH Group will, as soon as is reasonably practicable and at its sole discretion, either:

2.5.1.  Issue a variation which will form a part of the Agreement; or

2.5.2.  Terminate the original Agreement. All amounts owing under the original Agreement will become immediately due and payable in accordance with the original Agreement.

2.6.   The Customer is deemed to accept a variation issued pursuant to Clause 2.5.1 if the Customer:

2.6.1.  signs and returns a copy of the variation; or

2.6.2.  thereafter provides instructions to YKH Group to continue providing Goods and/or Services.

2.7.   YKH Group is not liable for any loss arising from a Customer’s request under Clause 2.5.

 

3.      Price and Payment

3.1.   The Customer undertakes to pay to YKH Group the Price in accordance with the terms of the Agreement without set off or deduction for any reason.  If no time period is specified, payment of the Price, from time to time, must be made within 14 days of the delivery of a tax invoice. This is an essential term of the Agreement.

3.2.   Unless otherwise stated, the Price in any offer may be accepted for a period of fourteen (14) days.

3.3.   YKH Group is entitled torequire a deposit to be paid prior to delivering the Goods and/or Services.

3.4.   YKH Group is entitled to issue payment claims for progress payments pursuant to the Agreement[JW3] .

3.5.   The Customer accepts that the Price is subject to change in the following circumstances:

3.5.1.  If the Customer requests a variation to the Goods and/or Services; or

3.5.2.  If the Customer changes the project timeline for the delivery of the Goods and/or Services; or

3.5.3.  If YKH Group is forced to replace the Goods and/or Services with alternative Goods and/or Services which have the same practical outcome as the original Goods and/or Services; or

3.5.4.  If there is an increase in the purchase price of Goods or the cost of labour for the Services.

3.6.   The Customer remains liable to pay to YKH Group the Price in accordance with the Agreement if it is adjusted pursuant to Clause 3.5. The Customer may request reasons and/or documents that support an adjustment under this clause, but remains liable to pay the Price in all events within delay, set off, or deduction.

3.7.   All tax invoices are issued under the Building and Construction Industry Security of Payments Act (NSW) 1999 (“the BCISOP Act”) and constitute a payment claim under it.

3.8.   Payment may be made by electronic/on-line banking or by any other method as agreed between the Customer and YKH Group. The Customer is liable to pay all payment processing fees/charges in addition to the Price.

3.9.   Unless otherwise stated, the Price does not include GST. The Customer must pay to YKH Group GST on the Price. In addition, the Customer 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.

 

4.      Credit, Security, and Charge

4.1.   In consideration of YKH Group agreeing to supply Goods and/or Services prior to receiving payment (credit), the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty, personal property or other assets capable of being charged, including debts, owed by or to the Customer, either now or in the future, to secure the performance by the Customer of its obligations under the terms of the Agreement (including, but not limited to, the payment of Price, interest, or loss and damage).

4.2.   YKH Group retains title to all Goods supplied until the Price has been paid in full.

4.3.   To protect the security given by the Customer under this Agreement, the Customer consents to the YKH Group registering a security interest, (including as an AllPAAP and PMSI) on the Personal Property Security Register, or to  lodge a caveat over any land in which the Customer has a beneficial or legal interest.

4.4.   The Customer irrevocably appoints YKH Group as the Customer’s attorney and authorises them to perform all necessary acts (including signing documents) to give effect to the provisions of this clause.

4.5.   The Customer authorises YKH Group to conduct a search of the Customer’s credit, information or records.

 

5.      Liability to pay for Goods and/or Services

5.1.   The Customer is liable to pay for the Goods and/or Services from the earlier of when YKH Group orders the Goods and/or Services under the Agreement, or when the Goods and/or Services are delivered to the Customer.

5.2.   Risk in the Goods passes to the Customer on delivery.

5.3.   The Customer must accept delivery of the Goods and/or Services in accordance with the project timeline.  If the Customer delays delivery of the Goods and/or Services, then the Customer is liable to pay YKH Group all loss arising from that delay on a full indemnity basis.

5.4.   Any time or date given by YKH Groupto the Customer with respect to the delivery of the Goods and/or Services is an estimate only. The Customer must still accept delivery of the Goods and/or Services, even if delivery is late, and YKH Group will not be liable for any loss or damage incurred by the Customer as a result of same.

 

6.      Warranties

6.1.   The Customer warrants and agrees that the property or site will be ready to receive the delivery of the Goods and/or Services in accordance with the project timeline, and that at the time of delivery of the Goods and/or Services, all substrates meet all relevant industry standards and tolerances.

6.2.   YKH Group has control over the timing and method of delivery of the Goods and/or Services to meet the project timeline.

6.3.   Subject to Clause 6.4, at the time of delivery, YKH Group warrants to the Customer that the Goods and/or Services have been supplied with reasonable skill, care, and attention.

6.4.   The Customer undertakes to inspect delivery of the Goods and/or Services promptly after it occurs.

6.5.   The Customer undertakes to immediately notify YKH Group of any issue or alleged defect in the Goods and/or Services when it first becomes apparent.

6.6.   The Customer will hold YKH Group harmless in the event that the Customer does not strictly comply with clause 6.4 and 6.5, or alleged damage, issue of defect could have been caused by a third party.

6.7.   YKH Group will not be liable for damage which arises out of or in relation to the Customer’s misuse, negligence, reckless, or intentional acts, or a breach of the Agreement.

6.8.   The Customer agrees that YKH Group will be provided the opportunity to remedy or repair any alleged issue, damage, or defect within a reasonable time.

 

7.      Liabilities, Limitation of Liability, and Indemnity

7.1.   To the maximum extent permitted at law, including under the Australian Consumer Law:

7.1.1. YKH Group shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit), or other economic loss, allegedly suffered by the Customer and arising out of a breach by YKH Group of the Agreement.

7.1.2. In all events, YKH Group’s maximum liability shall be limited to the lesser of:

(a)   the amount of the Price paid by the Customer to YKH Group for the particular Goods and/or Services subject of an alleged breach; or

(b)   the cost of repairing or replacing the Goods and/or Services the subject of an alleged breach.

7.1.3. YKH Group is not liable for any loss arising from or related to it following the directions of the Customer or their Authorised Representative, supply chain issues with Goods, manufacturer defects in Goods, strikes, industrial action, adverse weather conditions, fire, flood, COVID-19 outbreaks or any other cause beyond its control.

7.1.4. YKH Group has no liability whatsoever to the Customer arising from any incident, event, or occurrence arising during or following delivery of the Goods and/or Services.

7.1.5. YKH Group is under no liability for any loss arising from errors, issues, or defects caused or contributed to by the intentional, reckless, or negligent actions of the Customer, their Authorised Representative, or a third party at the property or the site. 

7.2.   The Customer acknowledges and agrees that YKH Group may access the Customer’s property or site to deliver the Goods and/or Services. The Customer acknowledges and agrees that the Customer is solely responsible for the condition of and safety at the property or the site, and the health and safety of all personnel at the property or the site, including for conducting site inductions and safety checks. The Customer agrees to indemnify YKH Group from all loss arising from an unsafe property or site, including if that causes injury, damage, or delay. The Customer agrees that YKH Group will not be liable for any loss arising from or related to the delivery of the Goods and/or Services if the property or site is not safe.

7.3.   The Customer acknowledges and agrees that YKH Group may use Sub-Contractors to deliver the Goods and/or Services. The Customer agrees that in the event of a loss arising due to the actions or inactions of a Sub-Contractor, then YKH Group is in no way liable for that loss, and that the Customer’s only recourse is to pursue the Sub-Contractor for that loss.

7.4.   The Customer acknowledges and agrees that YKH Group does not authorise Sub-Contractors to make representations on its behalf or to vary the Agreement or to bind them in any way. YKH Group is not liable or responsible for any negligence, recklessness, breach, or other incident that may arise from the delivery of Goods and/or Services by a Sub-Contractor.

7.5.   The Customer agrees to indemnify YKH Group against all loss, cost or damage sustained by YKH Group that arises from or is related to the performance of this Agreement.

 

8.      Intellectual Property & Ownership

8.1.   Each party expressly retains their own intellectual property.

8.2.   If YKH Group, by itself or with others, develops any intellectual property during the performance of the Agreement, it expressly retains ownership of it.

8.3.   The Customer shall not use, reproduce or distribute YKH Group’s intellectual property in any way.

8.4.   All of the provisions of Clause 8 shall survive any termination of any Agreement between the parties.

 

9.      Default and Consequences of Default

9.1.   Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of six percent (6%) per calendar month (and at YKH Group’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

9.2.   If the Customer owes YKH Group any money, or is liable to YKH Group for any loss or damage, the Customer shall indemnify YKH Group from and against all loss, costs and disbursements incurred by YKH Group in recovering that amount (including but not limited to internal administration fees, legal costs on a full solicitor client indemnity basis, contract default fees, and bank dishonour fees.)

9.3.   Without prejudice to any other remedies YKH Group may have, if the Customer is in breach of the Agreement:

9.3.1. YKH Group may suspend or terminate the supply of Goods and/or Services to the Customer by providing written notice. YKH Group will not be liable to the Customer for any loss or damage the Customer suffers because YKH Group has exercised its rights under this clause; and/or

9.3.2. the Customer irrevocably authorises YKH Group to enter upon such land as necessary to remove any Goods. These T&Cs are evidence of the Customer’s express written irrevocable authorisation.

9.4.   Without prejudice to YKH Group’s other remedies at law or under the Agreement, in the event of a breach of a condition of the Agreement, or a breach of a term which cannot be remedied within a reasonable time, or is not remedied following receipt of a notice of breach, then YKH Group is entitled to terminate the Agreement. If terminated under this clause, the Customer becomes immediately liable to pay the full amount of the Price as varied in accordance with the terms of the Agreement, plus all loss. Examples of termination events include, but are not limited to:

9.4.1.  If any money payable to YKH Group becomes overdue;

9.4.2.  In the event of an unsafe or unhealthy workplace, including a workplace free from bullying and harassment or other psychosocial hazards;

9.4.3.  the Customer becomes bankrupt, insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors.

 

10.    Notices

10.1.   Notices given under the Agreement shall be deemed to be delivered the business day after it has been sent by email to the party’s usual email address for correspondence.

 

11.    Dispute Resolution

11.1.   If a dispute arises between the parties to the Agreement, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within two (2) business days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. If the dispute cannot be resolved, either party may by further notice in writing to the other party refer such dispute to arbitration. Any arbitration shall be:

11.1.1.   referred to a single arbitrator to be nominated by the President of the Resolution Institute; and

11.1.2.   conducted in accordance with the rules of the Resolution Institute as in place from time to time.

11.2.   The unsuccessful party will be liable for the costs of the arbitration.

11.3.   Any decision of an arbitrator will be binding and will be registrable as a judgment in a Court of competent jurisdiction.

 

12.    Privacy Act 1988

12.1.   The Customer authorises YKH Group to collect any personal, sensitive, and business information to enable YKH Group to provide the Goods and/or  Services to the Customer, or for the purposes of conducting due diligence or credit checks or reporting on the Customer.

12.2.   The Customer warrants that, where the Customer provides YKH Group with personal information about another person, the Customer has ensured that the other person knows or understands what information was provided, and that the Customer has their consent to do so.

 

13.    Termination

13.1.   YKH Group may terminate the Agreement to which these T&Cs apply and/or cancel the delivery of any Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Customer. YKH Group shall not be liable for any loss or damage whatsoever arising from such cancellation.

13.2.   If the Customer terminates the Agreement and/or requests a variation that results in a termination of the Agreement, the Customer acknowledges and agrees that the Customer:

13.2.1.   remains responsible for payment of any Goods and/or Services provided up until termination; and

13.2.2.   is liable to pay the remainder of the Price; and

13.2.3.   in the event of non-payment, must allow YKH Group access to the Customer’s property to remove YKH Group’s equipment or Goods and secure the site, at the Customer’s cost; and

13.2.4.   shall be liable for all loss incurred (whether direct or indirect) by YKH Group as a result of the termination (including, but not limited to, lost profits, costs of materials and labour, and legal costs.)

 

14.    General

14.1.   The failure by YKH Group to enforce any provision of these T&Cs shall not be treated as a waiver of that provision, nor shall it affect YKH Group’s right to subsequently enforce that provision. If any provision of these T&Cs become invalid, void, illegal or unenforceable, the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.

14.2.   These T&Cs and the Agreement to which they apply shall be governed by the laws of the state of New South Wales and are subject to the exclusive jurisdiction of the courts of New South Wales. 

14.3.   The Customer agrees that YKH Group may amend these T&Cs at any time. If YKH Group makes a change to these T&Cs, then that change will take effect from the date on which YKH Group notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for YKH Group to provide Goods and/or Services to the Customer or if the Customer objects to the change within fourteen (14) days of notice.

14.4.   Neither party shall be liable for any default due to war, terrorism, strike, lock-out, industrial action, fire, flood, storm, pandemic, or other event beyond the reasonable control of either party.

14.5.   The Customer represents and 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.