The following standard terms and conditions for credit apply to any agreement for the conduct of trade on credit between YF Waste Services Pty Ltd A.B.N. 19 617 856 112 of 12 Sheridan Close, Milperra NSW 2214 (Marvel) and any customer of Marvel. Without limiting the generality of the foregoing, these standard terms and conditions for credit apply to any agreement for credit terms arising from the lodgement of any Marvel credit application form (Customer, You or Your).
Words in bold and/or capitalised words are defined terms as shown in clause 1 below.
The lodgement of any Marvel application for credit form by the applicant constitutes an offer by the customer to acquire and use a credit account on the terms and conditions set out in this document. Further, the acceptance of any Skip delivery on credit terms and and/or Your signature on any tax invoice issued by Marvel after approval of a request for credit shall constitute agreement to the supply of credit on the standard terms and conditions of credit.
In addition to the standard terms and conditions for credit, the supply of Skip(s) is subject to the terms and conditions found on the Marvel application for credit form and the Marvel Standard Terms and Conditions on the website www.skips365.com.au. In the event of conflict between these terms and conditions and the Marvel Standard Terms and Conditions or terms and conditions as set out the application for credit form, these terms and conditions shall prevail.
1 Defined Terms
Account means the credit account as approved by Marvel.
Additional Fees means any additional fees charged or chargeable by Marvel to You due to:
(a) filling the Skip higher than the top of its sides or in such a manner that may result in spillage of Waste from the Skip either while stationary or in transit;
(b) the type of Waste collected differs in nature to the type of Waste described by you in the Quote;
(b) the collection date specified in the Quote is extended by You;
(c) any costs, charges or fines imposed by any council or government authority on Marvel and arising by reason of Your use, filling (other than as agreed in writing and in accordance with these terms and conditions) or placement of the Skip; or
(d) any other fees (including Cancellation Fees and Variation Fees) or expenses or charges incurred by Marvel arising from Your failure to comply with this Agreement.
Agreement includes the terms and conditions set out in the Quote and within this document.
Claim means any claim, demand, action, proceedings, judgment or award of Damages brought, made or recovered by any party to this Agreement including claims for or arising from wilful or tortious acts or omissions.
Collection means Marvel’s collection of a Skip.
Credit Card means any credit card produced by You for the payment or prospective payment of Fees and includes any credit card details provided by You to Marvel.
Dispute means any dispute about Skip Services including the non-supply of Skip Services.
Damages means and includes liabilities, losses, damages, costs and expenses, including legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties.
Fees means the fees payable to the Marvel for provision of the Services pursuant to the terms of the Quote and this Agreement including:
(a) Skip delivery fees and charges;
(b) Skip hire costs relating to the period specified in the Quote;
(c) Collection and disposal costs including all fees charged by government authorities; and
(d) any Additional Fees.
GST means any Goods and Services Tax under the A New Tax System (Goods and Services Tax) Act 1999 or any related Law.
Insolvency Event means any act of Bankruptcy committed by you or if you are a company, You becoming subject to external administration within the meaning of Chapter 5 of the Corporations Act 2001.
Law includes the requirement of any statute, regulation, proclamation, ordinance, by-law or common law, present or future and whether state, federal or otherwise.
Party means You and Marvel.
Quote means any quotation for the provision of the Services to you by Marvel and includes the specification of rates, bin size and waste type as included on any Marvel tax invoice delivered to You.
Skip means a Waste container provided by Marvel which forms part of the Services.
Skip Services means the services requested by You and referred to in the Quote.
Marvel means YF Waste Services Pty Ltd A.B.N. 19 617 856 112.
Waste means the waste, rubbish and other refuse deposited by in the Skip.
Website means www.skips365.com.au.
You means the person or entity submitting the request for Services to Marvel and each of your contractors, employees, agents and persons under your control or direction.
2 Credit Limit
2.1 Upon approval of an application for credit, Marvel shall specify the maximum (GST inclusive) amount that may be charged to the Account over a particular period (Credit Limit). The Credit Limit is subject to review by Marvel at any time. Marvel may in its sole discretion agree to increase or decrease the Credit Limit upon written application by the Customer.
2.2 The balance of the account at any time must not exceed the Credit Limit. Marvel is not responsible for any loss or damage arising from any refusal to supply the Customer with goods or services because the credit limit has been exceeded. The Customer agrees to immediately pay Marvel any amount owed to Marvel which exceeds the credit limit, and the Customer agrees to pay for any goods or services which cannot be charged to the credit account without exceeding the credit limit.
2.3 Marvel can suspend or terminate the account with 7 days written notice.
3 Terms of Payment
3.1 You will pay to Marvel no later than 14 days from the issue of a monthly invoice all amounts set out therein. Invoices shall be sent by post or by email at the address specified by the customer in the application for credit form the act of posting or sending by email shall be sufficient notice of the amount due on the account.
3.2 Payment shall be by direct deposit or by credit card.
3.4 Should you be indebted to Marvel for any charges or become liable to pay Fees to Marvel you agree to pay Marvel:
(a) interest on all outstanding Fees and charges at a rate of 8% per annum calculated daily and You agree that such interest is a genuine pre-estimate of Marvel’s loss and damage arising from your failure to pay for the Services under this Agreement. Payments received will be credited firstly against any accrued but unpaid interest and then to the amount owed for the Services; and
(b) Marvel’s costs of recovering or attempting to recover from You any outstanding Fees and charges, including any mercantile agent’s costs, and legal costs on a full indemnity basis;
3.5 Marvel shall be entitled to list Your payment default/s with the Credit Reference Association of Australia or other relevant credit reference organisation.
4 Authorised & Unauthorised transactions and Account Suspension
The Customer is responsible for and indemnifies Marvel against unauthorised use of the Account. The Customer can ask for the Account to be suspended at any time. Any such request must be in writing.
5 Proof of Supply and Transaction Errors
5.1 A certificate setting out details of the amount owing and any other matters relating to the account (including supply of products or services) signed by an officer of Marvel shall be sufficient evidence (in the absence of manifest error) of the supply of products or services by Marvel to the customer. This certificate can be used in court proceedings.
5.2 Any complaint raised by a customer that a transaction on the account is incorrect must be advised to Marvel in writing within 7 days of the issue of the monthly invoice pertaining to the account. If this does not occur the transactions recorded in the monthly invoice pertaining to the account are taken to be correct. If part of any set out in the tax invoice is in dispute, the customer agrees to pay the undisputed amount within the time required in clause 3.1.
6 Warranties Excluded
6.1 To the extent permitted by Law, all other expressed or implied warranties, representations, terms and conditions other than those expressly contained in this Agreement are expressly excluded.
7 Your Acknowledgments
7.1 You acknowledge and agree that in entering into this Agreement, You have not relied upon any representation (whether verbal or in writing) made by Marvel other that what has been expressly stated within this Agreement.
8 Limitation on Liability
8.1 Despite any other provision in this Agreement, Marvel’s liability to You or any third party for any Claims relating to the performance or non-performance of the Services or this Agreement, will be limited to 10% of the total invoice sum for the month preceeding the making of the Claim.
8.2 Marvel specifically excludes any liability to You or to any third party for loss of profit or any other consequential, indirect, incidental or special loss, damage or expenses.
8.3 Nothing in this Agreement will operate to exclude, restrict or modify the application of any provision of the Competition and Consumer Act 2010 or the Consumer Law.
9 Dispute Resolution
9.1 Except where a Party seeks urgent interlocutory relief, a Party must not commence any court or arbitration proceedings relating to a Dispute unless it first complies with this clause.
9.2 A Party claiming that a Dispute has arisen under this Agreement must give written notice to the other Party giving reasonable details of the nature of the Dispute (Notice).
9.3 On receipt of that Notice by the other Party, the Parties must endeavour in good faith and within 7 days to resolve the Dispute.
9.4 If the Parties do not agree within 7 days of receipt of the Notice (or any further period agreed by them) as to:
(a) the dispute resolution technique and the procedures to be adopted;
(b) the timetable for all steps in those procedures; and
(c) the selection and compensation of the independent person required for such technique,
then the Parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of New South Wales. The Parties must request the President of the Law Society of New South Wales or the President’s nominee to select the Mediator and determine the Mediator’s remuneration.
10.1 Without limiting the generality of any other clause in this Agreement, Marvel may terminate this Agreement immediately by notice in writing if:
(a) You are in breach of any term of this Agreement and in the opinion of Marvel such breach is not capable of being remedied;
(b) You are in breach of any term of this Agreement which in the opinion of Marvel is capable of being remedied but which in the opinion of Marvel is not so remedied within 7 days of notice being given by Marvel to you to rectify that breach;
(c) You commit an Act of Insolvency; or
(d) You cease or threaten to cease to conducting any business operated by you in the normal manner.
10.2 In the event of such termination under clause 10.1, You must pay Marvel for all Fees incurred prior to the effective date of termination.
12 Force Majeure
12.1 If, for any reason beyond the reasonable control of Marvel, Marvel is unable to perform, in whole or in part, any of the Services or any other obligation under this Agreement, Marvel will be relieved of its obligations to the extent and for the period that it is unable to so perform, and will not be liable to You in respect of any such inability in any way whatsoever.
12.2 If a delay or failure by Marvel to perform its obligations due a force majeure event exceeds 7 days, Marvel may immediately terminate this Agreement by giving notice to the other Party.
12.3 In the event of such termination under clause 16.2, You must pay Marvel for all Fees and charges incurred prior to the effective date of termination.
13 Changes to Agreement
Marvel may amend its standard terms and conditions for credit at any time and you agree that the terms and conditions for credit as amended shall apply from the date of amendment of terms and conditions on the Website.
Any provision in this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality of enforceability of any other clause in this Agreement or the validity, legality or enforceability of this Agreement in any other jurisdiction.
The failure, delay or omission by Marvel to exercise a power or right conferred on it by this Agreement will not operate as a waiver of that power or right, and any single exercise of a power or right will not preclude another exercise of that power or the exercise of another power or right under this Agreement.
16.1 A notice, request consent or other communication (Communication) to be given by a Party under this Agreement must be in writing and addressed in accordance with the particulars for that party as set out in the Quote.
16.2 A Communication must be delivered by hand or prepaid post, or sent by facsimile or email. A Communication will be deemed to have been received:
(a) if hand delivered, on the next following business day;
(b) if posted, on the second business day after posting; and
(c) if sent by facsimile or email on the date of any receipt acknowledged
by fax or email or the next following business day unless the receiving Party has requested re-transmission before the end of that business day.
17 Governing Law
This Agreement is governed by and construed in accordance with the Law for the time being in force in New South Wales and the Parties, by entering into this agreement, agree to submit to the exclusive jurisdiction of the Courts of that State.