1.1 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, date of birth, occupation, driver license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.2 “Contract” means the terms and conditions contained herein, together with any proposal, quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.3 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using Supplier’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.4 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of Customer requesting Supplier to provide the Goods specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Customer, is a reference to each Customer jointly and severally; (b) if Customer is a partnership, it shall bind each partner jointly and severally; (c) if Customer is a part of a Trust, shall be bound in their capacity as a trustee; and (d) includes Customer’s executors, administrators, successors and permitted assigns.
1.5 “Goods” means all Goods and / or Services including Works supplied or proposed to be supplied by Supplier to Customer at Customer’s request from time to time (where the context so permits the terms ‘Goods’ and ‘Services’ shall be interchangeable for the other).
1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.7 “Intended Use” means a building product and the use thereof, for which the building product is intended to be, or is reasonably likely to be, associated with a building.
1.8 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building: (a) the product is not, or will not be, safe; or (b) does not, or will not, comply with the relevant regulatory provisions; or (c) the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.
1.9 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Supplier and Customer in accordance with clause 5 below.
1.10 “Supplier” means Breakpoint Refrigeration & Air Conditioning, its successors and assigns or any person acting on behalf of and with the authority of Supplier.
1.11 “Worksite” means the address nominated by Customer to which the Goods are to be supplied by Supplier.
2- Acceptance
2.1 Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if Customer places an order for or accepts Delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 Customer acknowledges that the supply of Goods on credit shall not take effect until Customer has completed a credit application with Supplier and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods request exceeds Customer’s credit limit and/or the account exceeds the payment terms, Supplier reserves the right to refuse Delivery.
2.6 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 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3- Errors and Omissions
3.1 Customer acknowledges and accepts that Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s): (a) resulting from an inadvertent mistake made by Supplier in the formation and/or administration of this Contract; and/or (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Supplier in respect of the Goods.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Supplier; Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
3.3 In circumstances where Customer is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not). (“Customer Error”). Customer must pay for all Goods it orders from Supplier notwithstanding that such Goods suffer from a Customer Error and notwithstanding that Customer has not taken or refuses to take delivery of such Goods. Supplier is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Customers Errors.
4- Change in Control
4.1 Customer shall give Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of Customer and/or any other change in Customer’s details (including but not limited to, changes in Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). Customer shall be liable for any loss incurred by Supplier as a result of Customer’s failure to comply with this clause.
5- Price and Payment
5.1 The Price payable by Customer shall at Supplier’s sole discretion be either: (a) as indicated on any invoice provided by Supplier to Customer; or (b) the Price applicable as at the date of delivery of the Goods according to Supplier’s current price list, however, subject to clause 5.2 below, if Supplier has quoted a price then that quoted price shall remain firm and valid for the period stated in the quotation.
5.2 Supplier reserves the right to change the Price: (a) if a variation to the Goods which are to be supplied is requested; or (b) if a variation to the Goods originally scheduled (including any applicable plans or specifications) is requested; or (c) where additional Goods are required due to the discovery of hidden or unidentifiable difficulties (including but not limited to, such as poor weather conditions, limitations to accessing the Worksite, safety considerations, prerequisite work by any third party not being completed or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Services; or (d) in the event of increases to the Supplier’s cost of labour or Goods which are beyond Supplier’s control.
5.3 Supplier reserves the right to change the Price if a variation to the Works or Supplier’s quotation is requested. Variations will be charged for on the basis of Supplier’s quotation, and will be detailed in writing, and shown as variations on Supplier’s invoice. Customer shall be required to respond to any variation submitted by Supplier within ten (10) working days. Failure to do so will entitle 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.
5.4 At Supplier’s sole discretion, a deposit payment may be required.
5.5 Time for payment for the Goods being of the essence, the Price will be payable by Customer on the date/s determined by Supplier, which may be: (a) on Delivery of the Goods; (b) the date specified on any proposal, quotation, invoice or other form as being the date for payment; or (c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to Customer by Supplier.
5.6 Payment may be made by cash, bank cheque, electronic/on-line banking, or by such other method/s as may be agreed between Customer and Supplier.
5.7 Supplier may in its discretion allocate any payment received from Customer towards any invoice that Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by Customer in making any payment Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.8 Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to Customer by Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, Customer must pay to Supplier an amount equal to any GST Supplier must pay for any supply by Supplier under this or any other Contract for the sale of the Goods. Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as 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.
6- Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that: (a) Customer or Customer’s nominated carrier takes possession of the Goods at Supplier’s address; or (b) Supplier (or Supplier’s nominated carrier) delivers the Goods to Customer’s nominated address even if Customer is not present at the address.
6.2 At Supplier’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
6.3 Subject to clause 6.4 it is Supplier’s responsibility to ensure that the Services start as soon as it is reasonably possible.
6.4 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Supplier claims an extension of time (by giving Customer written notice) where completion is delayed by an event beyond Supplier’s control, including but not limited to any failure by Customer to: (a) make a selection; or (b) have the Worksite ready for the Services; or (c) notify Supplier that the Worksite is ready.
6.5 Any time specified by Supplier for Delivery of the Goods is an estimate only and Supplier will not be liable for any loss or damage incurred by Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that Supplier is unable to supply the Goods as agreed solely due to any action or inaction of Customer, then Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
7- Risk
7.1 Risk of damage to or loss of the Goods passes to Customer on Delivery and Customer must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, then Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Supplier is sufficient evidence of Supplier’s rights to receive the insurance proceeds without the need for any person dealing with Supplier to make further enquiries.
7.3 If Customer requests Supplier to leave Goods outside Supplier’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at Customer’s sole risk.
7.4 Where Supplier is required to install the Goods Customer warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and Supplier shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
7.5 Whilst Supplier shall take all due care to prevent any damage to Customer’s existing tin/colourbond or tiled roof during the performance of the Services, Supplier shall not accept liability in the event of any damage caused to Customer’s roof. However, Supplier may offer to repair or replace any such damage, provided Customer has available the necessary Goods, at the time of installation.
7.6 In the event that Supplier discovers asbestos/hazardous materials whilst undertaking any Services the Supplier shall immediately advise Customer of the same and shall be entitled to suspend the Services pending a risk assessment in relation to those materials. Customer shall be liable for all additional costs (howsoever arising) incurred by Supplier as a result of the discovery of asbestos/hazardous materials and/or any suspension of the Services in relation thereto.
8- Refrigeration and Air Conditioning Risk
8.1 Whilst the final location of the condensing unit is at the discretion of Customer, a charge will apply as a variation as per clause 5.2, if Customer requests the unit to not be located adjacent to the external wall, due to the underground piping required.
8.2 The final location of the wall, window or floor unit must be determined on the Worksite by Customer.
8.3 Supplier shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however Supplier cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
8.4 In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then Customer shall be responsible for any and all costs involved.
8.5 Customer acknowledges and agrees that it is their responsibility to insure against theft or damage any and all equipment that is partly or completely installed on the Worksite.
8.6 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by Customer then Customer agrees to notify Supplier immediately upon any proposed changes. Customer agrees to indemnify Supplier against any additional costs which may be incurred due to any relocation of electrical wiring. All such variations shall be priced and invoiced to Customer in accordance with clause 5.2.
9- Worksite Access and Condition
9.1 Supplier is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated by Supplier will be placed in a designated area appointed by the Customer but the responsibility of removal of same is Customer or Customer’s agent, unless otherwise agreed.
9.2 It is the intention of Supplier and agreed by Customer that: (a) Customer shall ensure that Supplier has clear and free access to the Worksite at all times to enable them Supplier to complete the Services (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Goods). Supplier shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Supplier; and (b) it is Customer’s responsibility to provide Supplier, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities if required.
9.3 Customer agrees to be present at the Worksite when and as reasonably requested by Supplier and its employees, contractors and/or agents.
9.4 Worksite Inductions (a) in the event Customer requires an employee or sub-contractor of Supplier to undertake a Worksite induction during working hours, Customer will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then Customer shall be liable to pay Supplier’s standard (and/or overtime, if applicable) hourly labour rate; or (b) where Supplier is in control of the Worksite, Customer and/or Customer’s third party contractors must initially carry out Supplier’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event Customer and/or third party acting on behalf of Customer must at all times be accompanied by Supplier.
10- Underground Locations
10.1 Prior to Supplier commencing any work Customer must advise Supplier of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains & services that Customer must 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, and any other services that may be on the Worksite.
10.2 Whilst Supplier will take all care to avoid damage to any underground services, Customer agrees to indemnify 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 10.1 above.
11- Title
11.1 Supplier and Customer agree that ownership of the Goods shall not pass until: (a) Customer has paid Supplier all amounts owing to Supplier; and (b) Customer has met all of its other obligations to Supplier.
11.2 Receipt by 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.
11.3 It is further agreed that, until ownership of the Goods passes to Customer in accordance with clause 11.1 above: (a) Customer is only a bailee of the Goods and must return the Goods to Supplier on request; (b) Customer holds the benefit of Customer’s insurance of the Goods on trust for Supplier and must pay to Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed; (c) 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 Customer sells, disposes or parts with possession of the Goods then Customer must hold the proceeds of any such act on trust for Supplier and must pay or deliver the proceeds to Supplier on demand; (d) Customer should not convert or process the Goods or intermix them with other goods but if Customer does so then Customer holds the resulting product on trust for the benefit of Supplier and must sell, dispose of or return the resulting product to Supplier as it so directs; (e) Customer irrevocably authorises Supplier to enter any premises where Supplier believes the Goods are kept and recover possession of the Goods; (f) Supplier may recover possession of any Goods in transit whether or not Delivery has occurred; (g) 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 Supplier; (h) Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to Customer.
12- Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing 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 and/or collateral (account) – being a monetary obligation of Customer to Supplier for Services – that have previously been supplied and that will be supplied in the future by Supplier to the Customer.
12.3 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 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 12.3(a)(i) or above(a) above(ii) above; (b) indemnify, and upon demand reimburse, 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 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 and/or collateral (account) in favour of a third party without the prior written consent of Supplier; (e) immediately advise 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.
12.4 Supplier and Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions
12.5 Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by Supplier, Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 Customer must unconditionally ratify any actions taken by Supplier under clauses 12.3 to above.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13- Security and Charge
13.1 In consideration of Supplier agreeing to supply the Goods, 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, and Customer grants a security interest in all of its present and after-acquired property to secure the performance by Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 Customer indemnifies Supplier from and against all Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Supplier’s rights under this clause.
13.3 Customer irrevocably appoints Supplier and each director of Supplier as Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on Customer’s behalf.
14- Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 Customer must inspect the Goods 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. Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification Customer must allow Supplier to inspect the Goods.
14.2 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).
14.3 Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non- Excluded Guarantees.
14.4 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. Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If Customer is a consumer within the meaning of the CCA, Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If Supplier is required to replace the Goods under this clause or the CCA, but is unable to do so, the Supplier may refund any money Customer has paid for the Goods.
14.7 If Customer is not a consumer within the meaning of the CCA, Supplier’s liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to Customer by Supplier at the Supplier’s sole discretion; (b) limited to any warranty to which Supplier is entitled, if Supplier did not manufacture the Goods; (c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that: (a) Customer has complied with the provisions of clause 14.1; and (b) Supplier has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at Customer’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, 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) Customer failing to properly maintain or store any Goods; (b) Customer using the Goods for any purpose other than that for which they were designed; (c) Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) Customer failing to follow any instructions or guidelines provided by Supplier; (e) fair wear and tear, any accident, or act of God.
14.10 In the case of second-hand Goods, unless Customer is a consumer under the CCA, Customer acknowledges that it has had full opportunity to inspect the second-hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Customer acknowledges and agrees that the Supplier has agreed to provide Customer with the second-hand Goods and calculated the Price of the second-hand Goods in reliance of this clause 14.10.
14.11 Notwithstanding anything contained in this clause if Supplier is required by a law to accept a return of and property then Supplier will only accept a return on the conditions imposed by that law.
15- Intellectual Property
15.1 Where Supplier has designed, drawn or developed Goods for Customer, then the copyright in any designs and drawings and documents shall remain the property of Supplier. Under no circumstances may such designs, drawings and documents be used without the express written approval of Supplier.
15.2 Customer warrants that all designs, specifications or instructions given to Supplier will not cause Supplier to infringe any patent, registered design or trademark in the execution of Customer’s order and Customer agrees to indemnify Supplier against any action taken by a third party against Supplier in respect of any such infringement.
15.3 Customer agrees that Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Supplier has created for Customer.
16- Default and Consequences of Default
16.1 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 Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If Customer owes Supplier any money, Customer shall indemnify Supplier from and against all costs and disbursements: (a) incurred; and/or (b) which would be incurred and/or (c) for which by Customer would be liable; in regard to legal costs on a solicitor and own client basis, internal administration fees, Supplier’s contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
16.3 Further to any other rights or remedies Supplier may have under this Contract, if Customer has made payment to Supplier, and the transaction is subsequently reversed, then Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Supplier under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention of Customer’s obligations under this Contract.
16.4 Without prejudice to Supplier’s other remedies at law Supplier shall be entitled to cancel all or any part of any order that Customer has placed which remains unfulfilled and all amounts owing to Supplier shall, whether or not due for payment, become immediately payable if: (a) any money payable to Supplier becomes overdue, or in Supplier’s opinion Customer will be unable to make a payment when it falls due; (b) Customer has exceeded any applicable credit limit provided by Supplier; (c) 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 Customer.
17- Compliance with Laws
17.1 Customer and 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 Services, including any work health and safety laws (WHS) relating or any other relevant safety standards or legislation pertaining to the Services.
17.2 Both parties acknowledge and agree: (a) to comply with the National Construction Code of Australia (NCC) and the Building Products (Safety) Act 2017, in respect of all workmanship and building products to be supplied during the course of the Services; and (b) that Services will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
17.3 Where Customer has supplied products for Supplier to complete the Services, Customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in Supplier’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with state and/or territory regulations, then Supplier shall be entitled, without prejudice, to halt the Services until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 5.2 above.
17.4 Customer shall obtain (at the expense of Customer) all licenses and approvals that may be required for the Services.
18- Cancellation
18.1 Without prejudice to any other remedies Supplier may have, if at any time Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Supplier may suspend or terminate the supply of Goods to Customer. Supplier will not be liable to Customer for any loss or damage Customer suffers because Supplier has exercised its rights under this clause.
18.2 Supplier may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to Customer. On giving such notice Supplier shall repay to Customer any money paid by Customer for the Goods. Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 In the event that Customer cancels Delivery of Goods Customer shall be liable for any and all loss incurred (whether direct or indirect) by Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits)
19- Privacy Policy
19.1 All emails, documents, images or other recorded information held or used by Supplier is Personal Information, as defined and referred to in clause 19.3, and therefore considered Confidential Information. Supplier acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of Customer’s Personal Information, held by Supplier that may result in serious harm to Customer, Supplier will notify Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by Customer by written consent, unless subject to an operation of law.
19.2 Notwithstanding clause 19.1 above, privacy limitations will extend to Supplier in respect of Cookies where Customer utilises Supplier’s website to make enquiries. Supplier agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as Customer’s: (a) IP address, browser, email client type and other similar details; (b) tracking website usage and traffic; and (c) reports are available to Supplier when Supplier sends an email to Customer, so Supplier may collect and review that information (“collectively Personal Information”) If Customer consents to Supplier’s use of Cookies on Supplier’s website and later wishes to withdraw that consent, Customer may manage and control Supplier’s privacy controls via Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
19.3 Customer agrees that Supplier may exchange information about Customer with those credit providers and with related body corporates for the following purposes: (a) to assess an application by Customer; and/or (b) to notify other credit providers of a default by Customer; and/or (c) to exchange information with other credit providers as to the status of this credit account, where Customer is in default with other credit providers; and/or (d) to assess the creditworthiness of Customer including Customer’s repayment history in the preceding two (2) years.
19.4 Customer consents to Supplier being given a consumer credit report to collect overdue payment on commercial credit.
19.5 Customer agrees that personal credit information provided may be used and retained by Supplier for the following purposes (and for other agreed purposes or required by): (a) the provision of Goods; and/or (b) analysing, verifying and/or checking Customer’s credit, payment and/or status in relation to the provision of Goods; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or (d) enabling the collection of amounts outstanding in relation to the Goods.
19.6 Supplier may give information about 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 Customer including credit history.
19.7 The information given to the CRB may include: (a) Personal Information as outlined in 19.3 above; (b) name of the credit provider and that Supplier is a current credit provider to Customer; (c) whether the credit provider is a licensee; (d) type of consumer credit; (e) details concerning 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 (provided Supplier is a member of an approved OAIC External Disputes Resolution Scheme), 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 Customer no longer has any overdue accounts and 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 Supplier, Customer has committed a serious credit infringement; (h) advice that the amount of Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
19.8 Customer shall have the right to request (by e-mail) from Supplier: (a) a copy of the Personal Information about Customer retained by Supplier and the right to request that the Supplier correct any incorrect Personal Information; and (b) that Supplier does not disclose any Personal Information about Customer for the purpose of direct marketing.
19.9 Supplier will destroy Personal Information upon 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 Contract or is required to be maintained and/or stored in accordance with the law.
19.10 Customer can make a privacy complaint by contacting Supplier via e-mail. 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 Customer is not satisfied with the resolution provided, Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
20- Unpaid Seller’s Rights
20.1 Where Customer has left any item with Supplier for repair, modification, exchange or for Supplier to perform any other service in relation to the item and Supplier has not received or been tendered the whole of any monies owing to it by Customer, Supplier shall have, until all monies owing to the Supplier are paid: (a) a lien on the item; and (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
20.2 The lien of Supplier shall continue despite the commencement of proceedings, or judgment for any monies owing to Supplier having been obtained against Customer.
21- Building and Construction Industry Security of Payments Act 1999
21.1 At Supplier’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
21.2 Nothing in this document is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
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.
23- Trusts
23.1 If Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Supplier may have notice of the Trust, Customer covenants with Supplier as follows: (a) the Contract extends to all rights of indemnity which Customer now or subsequently may have against the Trust and the trust fund; (b) Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of Customer against the Trust or the trust fund. Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; (c) Customer will not without consent in writing of Supplier (Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events: (i) the removal, replacement or retirement of Customer as trustee of the Trust; (ii) any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.
24- General
24.1 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.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the Courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
24.3 Subject to clause 14, Supplier shall be under no liability whatsoever to Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by Customer arising out of a breach by Supplier of these terms and conditions (alternatively Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.4 Supplier may licence and/or assign all or any part of its rights and/or obligations under this Contract without Customer’s consent.
24.5 Customer must not licence or assign all or any part of its rights and/or obligations under this Contract without the prior written approval of Supplier.
24.6 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, Customer agrees and understands that it must not to give any instruction or direction to any of Supplier’s sub-contractors without the authority of Supplier.
24.7 Customer agrees that Supplier may amend their general terms and conditions for subsequent contracts with Customer by disclosing such amendments to Customer in writing. Such amendments shall be deemed to take effect from the date on which Customer accepts such changes, or otherwise at such time as Customer makes a further request for Supplier to provide Goods to Customer.
24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party.
24.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
24.10 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
