Terms & Conditions of Trade

Visual Interiors Designs Pty Ltd – Terms & Conditions of Trade
© Copyright – EC Credit Control 1999 - 2019 - #17822

1. Definitions
1.1 “Supplier” means Visual Interiors Designs Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Visual Interiors Designs Pty Ltd.
1.2 “Customer” means the person/s buying the Goods, Services and/or Equipment as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally (where the context so permits, the term ‘Customer’ shall also mean the Customer’s duly authorised representative).
1.3 “Goods” means all Goods or Services supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Equipment” means all Equipment including any accessories supplied on hire by the Supplier to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by the Supplier to the Customer.
1.5 “Price” means the Price payable (plus any GST where applicable) for the Goods, Services and/or Equipment as agreed between the Supplier and the Customer in accordance with clause 7 below.
1.6 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
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2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods, Services and/or Equipment.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Supplier.
2.3 The Customer acknowledges that the supply of Goods, Services and/or Equipment on credit shall not take effect until the Customer has completed a credit application with the Supplier and it has been approved with a credit limit established for the account.
2.4 In the event that the supply of Goods, Services and/or Equipment request exceeds the Customers credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery.
2.5 The Supplier reserves the right to substitute comparable Goods and/or Equipment (or components of the Goods and/or Equipment), and in all such cases the Supplier will notify the Customer in advance of any such substitution.
2.6 The Customer acknowledges and accepts that the supply of Goods and/or Equipment for accepted orders may be subject to availability and if, for any reason, Goods and/or Equipment are not or cease to be available, the Supplier reserves the right to vary the Price with alternative Goods and/or Equipment as per clause 2.5.
2.7 Notwithstanding clause 2.6 the Supplier also reserves the right at its discretion to introduce additional new Goods and/or Equipment as part of the Goods to be supplied.
2.8 These terms and conditions may be meant to be read in conjunction with the Supplier’s Hire Form, and:
(a) where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment, as defined therein; and
(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
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3. Electronic Transactions Act 2003
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.
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4. Change in Control
4.1 The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
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5. Authorised Representatives
5.1 Unless otherwise limited as per clause 5.2, the Customer agrees that should the Customer introduce any third party to the Supplier as the Customer’s duly authorised representative, that once introduced that person shall have the full authority to act on behalf of the Customer under this contract; such authority shall continue until the time that the Customer notifies the Supplier otherwise that the said person is no longer the Customer’s duly authorised representative.
5.2 In the event that the Customer’s duly authorised representative, as per clause 5.1, is to have only limited authority to act on the Customer’s behalf, then the Customer must specifically and clearly advise the Supplier in writing of the parameters of the limited authority granted to that authorised representative.
5.3 The Customer specifically acknowledges and accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier profit margin) in providing Goods, Services and/or Equipment requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 5.2 (if any)).
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6. On-Line Ordering
6.1 The Customer acknowledges and agrees that:
(a) the Supplier does not guarantee the website’s performance;
(b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by the Supplier
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
(d) there are inherent hazards in electronic distribution, and as such the Supplier cannot warrant against delays or errors in transmitting data between the Customer and the Supplier including orders, and you agree that to the maximum extent permitted by law, the Supplier will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
(e) when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences;
(f) if the Customer is not the cardholder for any credit card being used to pay for the Goods, the Supplier shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
6.2 The Supplier reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of the Supplier’s business, or violated these terms and conditions.
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7. Price and Payment
7.1 At the Supplier’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Supplier to the Customer; or
(b) the Price as at the date of delivery of the Goods, Services and/or Equipment according to the Supplier’s current price list; or
(c) the Supplier’s quoted price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2 The Supplier reserves the right to change the Price:
(a) if a variation to the Goods, Services and/or Equipment which are to be supplied is requested; or
(b) if a variation to the Services and/or Equipment originally scheduled is requested; or
(c) where additional Goods, Services and/or Equipment are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, prerequisite work by any third party not being completed substantially or at all, limitations to accessing the site, inclement weather, obscured/latent defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos or other toxic substances), availability of machinery, additional surface preparation, change of design, hidden pipes/cabling etc.) which are only discovered on commencement of the Services; or
(d) in the event of increases to the Supplier in the cost of labour or Goods (including but not limited to increases as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond the Supplier’s control.
7.3 Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Customer shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
7.4 Time for payment for the Goods, Services and/or Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
(a) on delivery of the Goods, Services and/or Equipment;
(b) by way of instalments/progress payments in accordance with the Supplier’s payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.
7.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Supplier.
7.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
7.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for the sale of the Goods, Services and/or Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays 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.
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8. Delivery of Goods, Services and/or Equipment
8.1 Delivery (“Delivery”) of the Goods, Services and/or Equipment is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods, Services and/or Equipment at the Supplier’s address; or
(b) the Supplier (or the Supplier’s nominated carrier) delivers the Goods, Services and/or Equipment to the Customer’s nominated address even if the Customer is not present at the address.
8.2 At the Supplier’s sole discretion, the cost of delivery is in addition to the Price.
8.3 The Supplier may deliver the Goods, Services and/or Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
8.4 Any time specified by the Supplier for delivery of the Goods, Services and/or Equipment is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods, Services and/or Equipment to be delivered at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Goods, Services and/or Equipment as agreed solely due to any action or inaction of the Customer, then the Supplier shall be entitled to charge a reasonable fee for re-delivery and/or storage.
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9. Risk
9.1 Risk of damage to or loss of the Goods and/or Equipment passes to the Customer on Delivery and the Customer must insure the Goods and/or Equipment on or before Delivery.
9.2 If any of the Goods and/or Equipment are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods and/or Equipment. The production of these terms and conditions
Visual Interiors Designs Pty Ltd – Terms & Conditions of Trade
© Copyright – EC Credit Control 1999 - 2019 - #17822
by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
9.3 If the Customer requests the Supplier to leave Goods and/or Equipment outside the Supplier’s premises for collection or to deliver the Goods and/or Equipment to an unattended location, then such Goods and/or Equipment shall be left at the Customer’s sole risk.
9.4 Where the Customer is a tenant (and therefore not the owner of the land/premises where the Services are to be carried out), the Customer warrants that full consent has been obtained from the owner for the Supplier to carry out the Services. The Customer acknowledges and agrees that they shall be personally liable for full payment of the Price for all Services provided under this agreement and to indemnify the Supplier against any claim made by the owner of the land/premises (howsoever arising) in relation to the provision of the Services by the Supplier; except where such claim has arisen because of the negligence of the Supplier.
9.5 The Customer agrees that they shall upon request from the Supplier provide evidence that:
(a) they are the owner of the land/premises upon which the Services are be undertaken; or
(b) where they are a tenant, that they have the consent of the owner for the Services are be undertaken.
9.6 The Customer warrants that the structure of the premises or equipment in or upon which the Goods are to be installed or erected is sound and will sustain the installation and Services incidental thereto and the Supplier shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
9.7 The Customer acknowledges:
(a) and agrees that where the Supplier has been contracted to perform cosmetic repairs (e.g. repair surface cracking) on textured or plastered surfaces:
(i) the Supplier is in no way remedying or repairing any damage or moisture ingress that may have been resultant, or could result, from the cracking; and
(ii) such repairs are in no way a guarantee (express or implied) of water tightness, and must not be considered such by the Customer.
(b) that where the Supplier is contracted to remove existing Goods from a structure and discovers weather-tightness/dampness issues that require other tradespeople or insurance assessment, the Supplier reserves the right to halt the Services, and invoice the Customer for Services already completed, until the time that the Supplier is satisfied that remedial work is completed to a standard suitable for the Services to be completed to a reasonable standard;
(c) that where the Supplier has been requested to repair existing structures and/or Goods, evidence of that repair may be apparent after completion of the Services.
9.8 The Customer acknowledges that variations of colour and texture may be inherent in the Goods. The Supplier shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between surfaces, the different areas treated and/or batches supplied.
9.9 The Supplier shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Supplier accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.10 Where the Customer has supplied Goods for the Supplier to complete the Services, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the Goods. The Supplier shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of Goods supplied by the Customer.
9.11 Detailed drawings of any services that will be embedded into/under/behind the Goods are to be provided to the Supplier prior to commencement of any Services. Whilst all due care will be taken no liability will be accepted by the Supplier for damage to the services or any other element embedded in the Goods.
9.12 The Customer shall ensure that the Supplier has clear and free access to the worksite at all times to enable the Services to be undertaken. The Supplier shall not be liable for any loss or damage to the site unless due to the negligence of the Supplier.
9.13 The Supplier shall not be liable for any defect in the Services if the Customer does not follow the Supplier’s recommendations.
9.14 Where the Supplier gives advice or recommendations to the Customer regarding the suitability of the worksite for supplying the Goods and/or Services, and any such advice or recommendations are not acted upon, then the Supplier shall require the Customer to authorise commencement of the Services in writing. The Supplier shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
9.15 The Supplier offers no guarantee against the following defects or damage that may occur naturally in the Goods and/or Services over time:
(a) cracking of paint over plaster where the wrong paints are used for coating; or
(b) delaminating of the plaster caused by hydroscopic movement or dampness in the substrate; or
(c) damage caused by contact with chemicals, solvents, oils or any other substances; or
(d) the occurrence of efflorescence and any detrimental effects this has on the appearance;
(e) pealing or flaking caused by the environment or other external factors.
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10. Customer’s Responsibility
10.1 Where applicable, it is the intention of the Supplier and agreed by the Customer that:
(a) it is the responsibility of the Customer to provide and have erected scaffolding to enable the Services to be undertaken (where in the Supplier’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed;
(b) in the event asbestos or any other toxic substances are discovered at the worksite, that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify the Supplier against any costs incurred by the Supplier as a consequence of such discovery. Under no circumstances will the Supplier handle removal of asbestos product;
(c) the Customer agrees to remove any furniture or personal goods from the vicinity of the Works, and agrees that the Supplier shall not be liable for any damage caused to those items through the Customers failure to comply with this clause;
(d) the Supplier takes no responsibility for animals or children on the worksite, and it is the Customer’s responsibility to ensure that all animals and children are safely secure;
(e) the Supplier is not responsible for the removal of rubbish from or clean-up of the worksite. This is the responsibility of the Customer;
(f) the Customer will supply electricity, temporary lighting, toilet, eating and first aid facilities if so required.
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11. Underground Locations
11.1 Prior to the Supplier commencing any Services, if the Supplier so requires, the Customer must advise the Supplier of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Customer may be required to identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, or any other services that may be on site.
11.2 Whilst the Supplier will take all care to avoid damage to any underground services the Customer agrees to indemnify the Supplier in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1.
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12. Compliance and Consents
12.1 The Customer and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods, Services and/or Equipment, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant and safety standards or legislation applicable to the Goods, Services and/or Equipment.
12.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Goods, Services and/or Equipment provided to it under this contract.
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13. Title
13.1 The Supplier and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Supplier all amounts owing to the Supplier; and
(b) the Customer has met all of its other obligations to the Supplier.
13.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
13.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 13.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
(e) the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods.
(f) the Supplier may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier.
(h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
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14. Personal Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
14.2 Upon assenting to these terms and conditions in writing the Customer 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 Goods, Services, Equipment and/or collateral (account) – being a monetary obligation of the Customer to the Supplier for Services – that have previously been supplied and that will be supplied in the future by the Supplier to the Customer.
14.3 The Customer undertakes to:
(a) 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 the Supplier 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 14.3(a)(i) or 14.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods and/or Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods, Services, Equipment and/or collateral (account) in favour of a third party without the prior written consent of the Supplier;
(e) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
14.4 The Supplier and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
14.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
14.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by the Supplier, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Customer must unconditionally ratify any actions taken by the Supplier under clauses 14.3 to 14.5.
14.9 Subject to any express provisions to the contrary (including those contained in this clause 14) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
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15. Security and Charge
15.1 In consideration of the Supplier agreeing to supply the Goods, Services and/or Equipment, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising the Supplier’s rights under this clause.
15.3 The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.
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16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
16.1 The Customer must inspect the Goods, Services and/or Equipment on delivery and must within seven (7) days of delivery notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods, Services and/or Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Supplier to inspect the Goods, Services and/or Equipment.
16.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the 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).
16.3 The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods and/or Equipment. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Customer is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If the Supplier is required to replace the Goods and/or Equipment under this clause or the CCA, but is unable to do so, the Supplier may refund any money the Customer has paid for the Goods and/or Equipment.
16.7 If the Customer is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the Goods, Services and/or Equipment is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by the Supplier at the Supplier’s sole discretion;
(b) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Goods;
(c) otherwise negated absolutely.
16.8 Subject to this clause 16, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 16.1; and
(b) the Supplier has agreed that the Goods, Services and/or Equipment are defective; and
(c) the Goods and/or Equipment are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods and/or Equipment are returned in as close a condition to that in which they were delivered as is possible.
16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods and/or Equipment;
(b) the Customer using the Goods and/or Equipment for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods and/or Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by the Supplier;
(e) fair wear and tear, any accident, or act of God.
16.10 The Supplier may in its absolute discretion accept non-defective Goods and/or Equipment for return in which case the Supplier may require the Customer to pay handling fees of up to twenty-five percent (25%) of the value of the returned Goods and/or Equipment plus any freight costs.
16.11 Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will only accept a return on the conditions imposed by that law.
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17. Intellectual Property
17.1 Where the Supplier has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Supplier. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.
17.2 The Customer warrants that all designs, specifications or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
17.3 The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Supplier has created for the Customer.
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18. Default and Consequences of Default
18.1 Interest on overdue invoices shall 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 the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, the Supplier’s contract default fee, and bank dishonour fees).
18.3 Further to any other rights or remedies the Supplier may have under this contract, if a Customer has made payment to the Supplier, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
18.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by the Supplier;
(c) the Customer becomes 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; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
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19. Cancellation
19.1 Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Goods, Services and/or Equipment to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
19.2 The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Goods, Services and/or Equipment at any time before the Goods, Services and/or Equipment are delivered by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods, Services and/or Equipment. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Customer cancels delivery of Goods, Services and/or Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
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20. Construction Contracts Act 2004
20.1 At the Supplier’s sole discretion, if there are any disputes or claims for unpaid Goods, Services and/or Equipment then the provisions of the Construction Contracts Act 2004 may apply.
20.2 Nothing in this agreement is intended to have the effect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia, except to the extent permitted by the Act where applicable.
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21. Privacy Act 1988
21.1 The Customer agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Supplier.
21.2 The Customer agrees that the Supplier may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
21.3 The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
21.4 The Customer agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods, Services and/or Equipment; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods, Services and/or Equipment; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods, Services and/or Equipment.
21.5 The Supplier may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
21.6 The information given to the CRB may include:
(a) personal information as outlined in 21.1 above;
(b) name of the credit provider and that the Supplier is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Supplier, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
21.7 The Customer shall have the right to request (by e-mail) from the Supplier:
(a) a copy of the information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect information; and
(b) that the Supplier does not disclose any personal information about the Customer for the purpose of direct marketing.
21.8 The Supplier will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
21.9 The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
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22. Service of Notices
22.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
22.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
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23. General
23.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which the Supplier has its principal place of business, and are subject to the jurisdiction of the Perth Courts in that state.
23.3 Subject to clause 16 the Supplier shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
23.4 Neither party to this contract may assign this contract, any payment or any other right, benefit or interest under this contract without the written consent of the other party (which shall not be unreasonably withheld). The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.
23.5 The Customer agrees that the Supplier may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Supplier to provide Goods to the Customer.
23.6 Neither party shall be liable for any default 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.
23.7 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.
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