Terms & Conditions

GIRI GROUP PTY LTD TRADING AS BENDIGO PROPERTY MAINTENANCE

TERMS AND CONDITIONS

1. DEFINITIONS

In this document:

1.1 “Agreement” means any contract or agreement, whether formal or informal, written, oral or partly written and partly oral, formed between the Client and BPM, including but not limited to by way of the Client’s acceptance of a Quote issued by BPM.

1.2 “BPM” means Giri Group Pty Ltd (ACN 614 203 520) trading as Bendigo Property Maintenance and each related entity as defined in the Corporations Act 2001 (Cth) of Giri Group Pty Ltd (ACN 614 203 520) now or at any time Services are supplied to the Client in the future.

1.3 “Client” means the individual, business, partnership or company entering into an Agreement with BPM and includes the Client’s successors and assigns.

1.4 “Date for Payment” means the date for payment of the Price (minus the Deposit) specified in BPM’s Invoice and, if no date for payment is specified in BPM’s Invoice, the date for payment shall be 14 days after the date that BPM renders an Invoice to the Client.

1.5 “Deposit” has the meaning stated in clause 5.2(a).

1.6 “Hazardous Materials” means any substance, chemical or material that poses a risk to the health and safety of a person including but not limited to asbestos, mould, or magnesite.

1.7 “Invoice” means an invoice issued to the Client by BPM.

1.8 “Notice” means a notice in accordance with clause 18.

1.9 “Party” means each party to an Agreement, including BPM and the Client, and “Parties” has a corresponding meaning.

1.10 “Price” has the meaning stated in clause 4 and is subject to clause 15.

1.11 “Property” means the property nominated by the Client for the provision of the Works.

1.12 “Quote” means a quote issued to the Client by BPM.

1.13 “Service” means the provision of services by BPM to the Client pursuant to an Agreement including but not limited to general maintenance work at the Property.

1.14 “Terms and Conditions” means the terms and conditions set out herein subject to any amendments expressly made by BPM pursuant to clause 2.4.

1.15 “Works” means BPM’s provision of Services pursuant to the Agreement.

1.16 Unless context requires otherwise:

1.16.1 the singular includes the plural and vice versa; 

1.16.2 a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

1.16.3 a reference to any gender includes all genders;

1.16.4 a reference to a recital, clause or schedule is to a recital, clause or schedule of or to these Terms and Conditions; 

1.16.5 a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, restated or replaced from time to time; 

1.16.6 a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute; 

1.16.7 reference to a body, other than a Party to the Agreement (including, without limitation, an institute, association or authority), whether statutory or not:

(a.) which ceases to exist; or 

(b.) whose powers or functions are transferred to another body, 

 is a reference to the body which replaces it or which substantially succeeds to its powers or functions;

1.16.8 If a party comprises two or more persons, the covenants and Agreements on their part bind and shall be observed and performed by them jointly and each of them severally and may be enforced against any one or any two or more of them;

1.16.9 A reference to a party includes its executors, administrators, successors and permitted assigns;

1.16.10 No provision of these Terms and Conditions will be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of these Terms and Conditions or that provision; 

1.16.11 Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; 

1.16.12 All references to A$, $, dollar, $, or to currency are references to Australian dollars;

1.16.13 "Including" and similar expressions are not and must not be treated as words of limitation; and

1.16.14 Headings are for ease of reference only and do not affect the meaning of these Terms and Conditions.

2. OPERATION AND APPLICATION

2.1 BPM agrees to provide the Client with the Services subject to these Terms and Conditions. These Terms and Conditions apply in respect of all Agreements, offers to sell, Quotes, and other commercial transactions for the supply of the Services by BPM to the Client.

2.2 The Agreement between the Client and BPM shall be upon these Terms and Conditions and shall be read in conjunction with these Terms and Conditions.

2.3 These Terms and Conditions shall operate to the exclusion of any terms and conditions to the contrary effect expressed in any of BPM’s quotations or other communication or documentation and shall supersede all prior Agreements.

2.4 From time to time, BPM may review and amend these Terms and Conditions of the Agreement and the Client shall be bound by any variation which shall apply to the supply of any of the Works following the effective date of the variation. 

3. FORMATION OF AGREEMENT 

3.1 Unless stated otherwise on the Quote, BPM’s written Quotes are valid for 30 days from the date of issue of the Quote, and thereafter are subject to confirmation in writing by BPM before acceptance.

3.2 A Quote issued by BPM must be accepted by the Client in writing.

3.3 The Client agrees that, where a Quote has been based on critical dimensions supplied by the Client, any variance established to those dimensions by BPM once on site at the Property will entitle BPM to:

3.3.1 an extension of time pursuant to clause 7 herein; and/or

3.3.2 revise and amend the Price of the Works as a result of the variance.

4. PRICE 

4.1 The Client shall pay to BPM the price specified for the Services as stated on the Quote or Invoice, and all taxes, credit card fees, delivery fees, handling fees, and other charges in respect of the Services (“Price”). 

5. PAYMENT

5.1 The Client agrees to pay the Price for the Services in accordance with these Terms and Conditions.

5.2 BPM will render Invoices to the Client for the Price and the Client agrees to pay the Price as follows:

(a) 50% of the Price (“the Deposit”) prior to BPM commencing the Works; and 

(b) The remainder of the Price on or before the Date for Payment.

5.3 The Client warrants that its nominated payment method has sufficient clear funds available to pay the Price.

5.4 Time of payment is of the essence of the Agreement.

5.5 Where the Client has provided details of a debit or credit card for payment to BPM in the Agreement, the Client agrees and authorises BPM to charge or make deductions from the debit or credit card to satisfy the Price or any part of the Price at any time without notice to the Client.

5.6 BPM may charge an additional 1.2% to the Client where the Client has provided details of a debit or credit card for payment to BPM.

5.7 BPM shall be entitled to charge the Client interest calculated at 12% per annum, on the balance of all overdue accounts and invoices from the due date for payment until the date of actual payment. 

6. COSTS RECOVERABLE

6.1 Should the Client default in the payment of any monies due under any Agreement, then all monies due to BPM shall immediately become due and payable and shall be paid by the Client within 7 days of the date of demand.

6.2 The Client shall pay on an indemnity basis all expenses, costs and disbursements, including debt collection agency fees, commission and any fees paid to BPM’s solicitors (on an indemnity basis) incurred by BPM or its appointed agents in recovering payment of any outstanding monies, enforcing its rights under the Agreement, or in investigating or defending any action or threatened actions.

6.3 Where the Client is a company, the Client’s Directors personally guarantee the payment of all costs and expenses owing to BPM by the Client.

6.4 The Client hereby charges and mortgages in favour of BPM to secure the repayment of any debt and any monies which may become owed by the Client to BPM hereunder and under any Agreement all of the Client’s present and future estate and interest in all real property and personal property. 

7. COMPLETION, DELAYS AND EXTENSIONS OF TIME

7.1 Any time or date named and accepted by BPM, including on the Quote, for completion, delivery, dispatch, or arrival of the Services is an estimate only and does not constitute a condition of the Agreement or part of the description of the Services and is not of the essence of the Agreement.

7.2 Should the Works or the progress of the Works be delayed by any of the following causes or conditions resulting therefrom:

7.2.1 BPM not having uninhibited access to carry out the Works pursuant to clause 12.2.4;

7.2.2 The Property not being suitable for the Works;

7.2.3 On account of variations;

7.2.4 By inclement weather or conditions resulting from inclement weather;

7.2.5 By reason of any civil commotion, or combination of workmen or strikes or lockouts affecting the Works;

7.2.6 Any act, default or omission on the part of the Client;

7.2.7 Delay on the part of any third party (including a third party engaged by BPM);

7.2.8 By any other matter, cause or thing whatsoever beyond the control of BPM including but not limited to unavailability of labour or materials, technical or mechanical issues, or pandemic,

then in any such case, BPM shall be entitled to a fair and reasonable extension of time in which to complete the Works without notice to the Client.

7.3 When the Client becomes aware of any matters that are likely to result in a delay to the Works, the Client is to notify BPM in writing of the nature and estimated extent of the delay. 

7.4 Upon receipt of the Client’s notice in clause 7.3 above, BPM will notify the Client of the estimated impact of the delay on: 

7.4.1 The time for completion of the Works; and

7.4.2 The estimated extra costs associated with the delay. 

7.5 The Client shall pay for BPM’s extra costs and fees necessarily incurred by reason of any delay or extension.

8. THE SERVICES

8.1 The Client acknowledges and agrees that the nature of the Works is such that there is risk of damage to property and surrounding surfaces, and:

8.1.1 The Client shall be solely liable and responsible for repairing any damage that may occur to any property or surrounding surface as a result of the Works; and

8.1.2 Without prejudice to any other right BPM has under these Terms and Conditions, BPM shall not be liable or responsible for repairing any damage that may occur to any property or surrounding surface as a result of the Works.

9. FORCE MAJEURE

9.1 BPM will not be liable for any breach of the Agreement due to any matter or thing beyond BPM’s control. Furthermore, BPM is excused from performing any term, covenant or condition required by the Agreement during the time and to the extent that performance is prevented when such performance is prevented wholly or in part by circumstances beyond BPM’s control.

10. DEFECTS

10.1 If the Client believes that the Services are not in accordance with the Agreement the Client must give notice of the alleged defective Services to BPM within 30 days of delivery of the Services.

10.2 BPM shall not be responsible or liable for any alleged defect in the Services unless it is reported in accordance with clause 10.1.

10.3 Following the Client giving notice of an alleged defect pursuant to clause 10.1, the Client must allow a representative of BPM (including a third party engaged by BPM) the right to inspect any alleged defect in the Services, including by attending the Property.

11. NO WARRANTY 

11.1 BPM makes no express warranties to the Client, except those expressly set out in the Agreement and these Terms and Conditions.

11.2 BPM will not be liable in any circumstances for any loss or damage whatsoever allegedly incurred and arising out of any:

11.2.1 Conditions, warranties and terms implied by statute or general law or custom except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void;

11.2.2 Alleged liability to the Client in contract for consequential or indirect damages arising out of or in connection with the provision of the Services or the Agreement, even if BPM knew they were possible or they were otherwise unforeseeable; and

11.2.3 Claims by the Client in negligence for acts or omissions of BPM or its employees, agents, or contractors arising out of or in connection with the Agreement.

11.3 Whilst BPM will use its best endeavours to ensure delivery of the Services by the date requested by the Client, including any date or time on BPM’s Quote, it does not guarantee delivery on that date and will not be liable for any damages, loss, costs or charges incurred by the Client due to late delivery ensuing from any circumstances whatsoever, either within or beyond the control of BPM.

11.4 The Parties acknowledge and agree that:

11.4.1 any prior representations, agreements and arrangements, including representations as to the suitability of the Services;

11.4.2 any descriptions, illustrations and material contained in any advertisement, website, catalogue, price list or brochure; and

11.4.3 all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Services for any purpose or as to design, assembly, installation, material or workmanship or otherwise, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void;

are expressly excluded from, and do not form part of, the Agreement unless specifically stated in the Agreement to the contrary.

11.5 If clause 11.2, 11.4 and/or 14.1 herein is held by a court to be unlawful, invalid or unenforceable for any reason, including pursuant to the Competition and Consumer Act 2010 (Cth), the Client agrees that BPM’s total liability to the Client for any loss or damage suffered by the Client in relation to the Services or the Agreement is limited, in BPM’s sole discretion, to re-performance of the relevant Services or a refund of the relevant Price of the Services.

11.6 If clause 11.5 herein is held by a court to be unlawful, invalid or unenforceable for any reason, including pursuant to the Competition and Consumer Act 2010 (Cth), the Client agrees that BPM’s total liability to the Client for any loss or damage suffered by the Client in relation to the Services or the Agreement shall not exceed the amount that is the lower of:

11.6.1 The amount covered by BPM’s insurer specifically for that loss or damage; and

11.6.2 The actual amount received by BPM from its insurer specifically for that loss or damage.

12. THE CLIENT’S WARRANTIES

12.1 The Client warrants that it has not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by BPM or anyone on its behalf in respect of the Services, other than those that are expressly contained in the Agreement.

12.2 The Client warrants that:

12.2.1 The Client is entitled to have the Works carried out at the Property; 

12.2.2 The Property will support the Works;

12.2.3 The Client has obtained any necessary Council, planning or building approvals;

12.2.4 BPM shall have uninhibited access to the Property for the purposes of carrying out the Works; and

12.2.5 The Client will provide BPM with access to any facilities necessary for BPM to carry out the Works.

12.3 In the event the Client breaches any of the warranties in clause 12.2, BPM shall be entitled to, in its sole discretion, an extension of time pursuant to clause 7 herein and to review and amend the Price of the Works, or to terminate the Agreement pursuant to clause 16 herein.

12.4 The Client warrants it has either eliminated, or documented and provided prior notice to BPM in writing of, all foreseeable hazards at the Property, including but not limited to safe access and Hazardous Materials.

12.5 In the event that BPM discovers Hazardous Materials or any other matter at the Property during the provision of the Services which, in BPM’s sole discretion, poses a safety concern, BPM may terminate the Agreement pursuant to clause 16 and the Client shall pay BPM in accordance with clause 16.3.

13. NO LIABILITY FOR THIRD PARTIES

13.1 The Client acknowledges and agrees that BPM is not liable for:

13.1.1 any damage or defects attributable to the provision of services by a third party, including a third party engaged by BPM; or

13.1.2 any defects attributable to the manufacture of any goods that are manufactured by third parties.

14. LIABILITY AND INDEMNITY 

14.1 BPM shall not be liable to the Client or any other party in contract, tort, warranty, strict liability, or any other legal theory for any indirect, consequential, incidental, punitive or exemplary damages, or for any claim for loss of profits, and the Client agrees that BPM may plead these Terms and Conditions as a bar to any such claims whether they arise at law, in equity, under any statute, regulation, or other legislative instrument, or under any contract, deed, or any other instrument made or approved under any law. 

14.2 The Client hereby releases and indemnifies and agrees to keep BPM indemnified from any and all costs (including all legal fees and costs) and any other legal or other expenses incurred by it in investigating or defending any action or threatened actions (on an indemnity basis), damages, liabilities, penalties, fines, expenses or losses including indirect, incidental, consequential, punitive or exemplary loss or damage (including but not limited to loss of profit), whether resulting from breach of contract, tort, warranty, strict liability, statute or any other legal theory or otherwise that BPM may incur in relation to the Client or any third party, including where the cost, damage, liability, penalty, fine, expense or loss is caused by or contributed to by BPM in any way or for any reason whatsoever. 

15. VARIATIONS

15.1 Any variation to the Works or the Agreement must be agreed to in writing between a representative of BPM and of the Client, confirming the:

15.1.1 precise scope of the variation; and 

15.1.2 any change to the Price as a result of the variation. 

15.2 The Client agrees that BPM may revise and amend the Price of the Works if there are any such variations.

15.3 Where any variation to the Works or the Agreement is necessary:

15.3.1 To comply with any written direction lawfully given by a person acting under a written law; or

15.3.2 By virtue of circumstances that could not reasonably have been foreseen by BPM at the time when the Agreement was entered into,

BPM shall be entitled to payment for such variation provided that before carrying out the Works in relation to the variation, BPM gives to the Client a statement setting out the reason for, and the cost to be incurred on account of the variation, together with a copy of any written direction referred to in clause 15.3.1.

16. TERMINATION AND SUSPENSION

16.1 If the Client defaults in the due and punctual observe of all or any of its obligations, warranties or covenants under the Agreement or these Terms and Conditions, dies, commits an act of bankruptcy, takes or shall have taken against it any action for its winding up, is placed under official management, administration or receivership, then BPM may without prejudice to any other right or remedies it has:

16.1.1treat as discharged all or any obligation arising from any Agreement;

16.1.2 retain any security given or monies paid by the Client, including any Deposit, and apply this in reduction of any sum of money owed or owing by the Client to BPM; and

16.1.3 take such steps as BPM may deem necessary in its sole discretion to mitigate its damages suffered including the putting to use, sale, hire, or disposal of any goods under the Agreement.

16.2 In addition to any other rights under the Agreement, BPM may terminate the Agreement by notice in writing to the Client immediately upon any one of the following events:

16.2.1 If, in BPM’s sole discretion, BPM cannot reasonably or safely access the Property or carry out the Works;

16.2.2 Any deliberate and substantial prevention of or interference with the provision of the Services or progress thereof caused by the Client whether directly or indirectly;

16.2.3 Substantial interference with the Works or access thereto by any cause beyond the control of BPM including (but without limiting in any way the generality thereof) inclement weather conditions, water, flood, fire, storm tempest, rioting, earthquake, pandemic, civil commotion or industrial action;

16.2.4 Any substantial breach of the Agreement or these Terms and Conditions by the Client;

16.2.5 If the Client shall make any assignment for the benefit of or enter into any arrangement or composition with its creditors or go into liquidation (whether voluntary or compulsory except for the purpose of reconstruction or amalgamation) or have a receiver appointed or commit an act of bankruptcy or if a sequestration order is made against the Client’s estate;

16.2.6 Any failure by the Client to pay any part of the Price in accordance with clause 5 herein.

16.3 If the Agreement is terminated:

16.3.1 the Client shall pay BPM for all Services provided by BPM, all work done by BPM, and all goods or materials used or procured by BPM and properly chargeable to the date of termination; and

16.3.2 BPM may retain any security given or monies paid by the Client, including any Deposit, and apply this in reduction of any sum of money owed or owing by the Client to BPM pursuant to this clause 16.

16.4 Should the Client default by failing to pay the Price, pay any part of the Price, pay any money due and owing, or by committing any other breach of the Agreement:

16.4.1 BPM may, without prejudice to BPM’s right to terminate the Agreement, give a notice to the Client stating it intends to suspend the Works in 7 days unless the Client remedies its default within 7 days (“Notice of Intention to Suspend”);

16.4.2 If the Client’s default continues for 7 days after BPM gives its Notice of Intention to Suspend, then BPM may suspend the Works. If BPM suspends the Works it shall promptly give Notice of such suspension in writing to the Client (“Suspension Notice”);

16.4.3 BPM shall lift the suspension within 14 days of the Client remedying the default specified in the Notice of Intention to Suspend, and the time in which to bring the Works to completion shall be extended by the period equivalent to the number of days which the Works were suspended and any consequential delays.

16.5 BPM shall be entitled to be paid reasonable costs arising from any suspension of the Works pursuant to clause 16.4.

17. DISPUTE RESOLUTION

17.1 The parties agree not to commence proceedings in relation to any dispute arising in regard to this Agreement or the Services without first having regard to the procedure set out in this clause 17.

17.2 Any dispute that may arise between the parties in connection with this Agreement or the Services shall be attempted to be resolved in the following manner: 

17.2.1 The party that alleges they have suffered some loss or damage, or is otherwise aggrieved, shall serve the other party with a notice in writing adequately identifying and providing details of the dispute (“Notice of Dispute”);

17.2.2 Within 28 days of service of the Notice of Dispute, the parties must confer in an 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;

17.2.3 If the dispute remains unresolved after 28 days of the date of service of the Notice of Dispute, then the parties agree to submit the dispute to mediation, or some other form of alternative dispute resolution, before commencing court proceedings; and 

17.2.4 If the dispute is not resolved within 90 days of service of the Notice of Dispute (or any longer period as agreed to by the parties), either party who has complied with this clause may end the dispute resolution process by written notice to the other party and immediately thereafter commence court proceedings in relation to the dispute.

18. NOTICES

18.1 A party must give any notice required under these Terms and Conditions or the Agreement in accordance with this clause 18.

18.2 A notice must be served at the address or electronic mail address of the party set out in the Agreement.

18.3 A party may deliver a notice by hand, post, or by electronic mail. 

18.4 If before 4.00pm local time in the place of delivery, a party delivers a notice by hand or by electronic mail and the sending party completes the transmission the notice will be taken to be given on the day of delivery or transmission, and in any other case on the next day. If the party gives notice by post the notice will be taken as given on the 7th day in the place of delivery after the notice is posted. 

18.5 A party may give notice of another address (within Australia) or an electronic mail address for service to the other party, and the new address or the electronic mail address shall be the address for service of the party for the purposes of this clause.

19. MISCELLANEOUS 

19.1 BPM may assign, sub-contract or sub-let the whole or any part of the Works or BPM’s obligations under an Agreement, without seeking the consent of the Client. 

19.2 The Client may not assign, sub-contract or sub-let any part of the Works, or any of its rights, liabilities, or obligations under any Agreement, without the prior written consent of BPM. 

19.3 The covenants, agreements and obligations contained in any Agreement and these Terms and Conditions will not merge or terminate upon the repudiation or termination of the Agreement and to the extent that they have not been fulfilled or satisfied or are continuing obligations they will remain in force and effect. 

19.4 Any waiver by BPM must be in writing signed by BPM. Failure by BPM to enforce any right or remedy is not a waiver of any right or remedy, or a waiver in respect of a continuing breach. 

19.5 If any provision contained in these Terms and Conditions is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions in these Terms and Conditions are not affected. 

19.6 These Terms and Conditions and the Agreement are governed and are to be construed in accordance with the laws in force in the State of Victoria.

19.7 These Terms and Conditions and the Agreement are subject to the exclusive jurisdiction of the Courts of Victoria. 

20. RECEIPT AND ADVICE 

20.1 The Client hereby acknowledges receipt of these Terms and Conditions and agrees to be bound by them. The Client accepts these Terms and Conditions in acknowledgement that they are legally binding and presently enforceable. The Client further acknowledges that it has had the opportunity of obtaining independent legal advice and that the Client understands the Terms and Conditions outlined above.