1. Definitions

1.1            “Contractor” means Mojo Air Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Mojo Air Pty Ltd

1.2            “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:

(a)   if there is more than one Client, is a reference to each Client jointly and severally; and

(b)   if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

(c)   includes the Client’s executors, administrators, successors and permitted assigns.

1.3            “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Contractor to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.4            “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Contractor and the Client in accordance with clause 5 below.

1.5            “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

 

2. Acceptance

2.1            The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.

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 contract between the Client and the Contractor.

2.3            In the event that the Contractor is required to provide the Works urgently, that may require the Contractor’s staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then the Contractor reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between the Contractor and the Client.

2.4            If the Contractor has been requested by the Client to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.

2.5            The Client acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, the Contractor reserves the right to substitute comparable Materials (or components of the Materials) and vary the Price as per clause 5.2. In all such cases, the Contractor will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order on hold until such time as the Contractor and the Client agree to such changes.

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            The Client acknowledges and accepts that the Contractor 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 the Contractor 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 the Contractor in respect of the Works.

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 the Contractor; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

 

4. Change in Control

4.1            The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.

 

5. Price and Payment

5.1            At the Contractor’s sole discretion the Price shall be either:

(a)   as indicated on invoices provided by the Contractor to the Client in respect of Works performed or Materials supplied; or

(b)   the Price as at the date of delivery of the Works according to the Contractor’s current price list; or

(c)   the Contractor’s quoted Price (subject to clause 5.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.

5.2            The Contractor reserves the right to change the Price:

(a)   if a variation to the Materials which are to be supplied is requested; or

(b)   if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

(c)   where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, obscured site defects which require remedial work (e.g. poor existing wiring), health hazards and safety considerations (such as the discovery of asbestos), availability of machinery, replacement of wall brackets, prerequisite work by any third party not being completed, hard rock barriers below the surface or iron reinforcing rods in concrete, hidden pipes and wiring/cabling etc.) which are only discovered on commencement of the Works; or

(d)   in the event of increases to the Contractor in the cost of labour or Materials (including, but not limited to, result of fluctuations in currency exchange rates or increases to the Contractor in the cost of taxes, levies, freight and insurance charges, or delays in shipment etc.)  which are beyond the Contractor’s control.

5.3            Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor 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 the Contractor’s sole discretion a non-refundable deposit may be required.

5.5            Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:

(a)   on completion of the Works; or

(b)   before commencement of the Works; or

(c)   by way of progress payments in accordance with the Contractor’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or

(d)   thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(e)   the date specified on any invoice or other form as being the date for payment; or

(f)     failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by the Contractor.

5.6            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 Client and the Contractor.

5.7            The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.

5.8            Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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. Provision of the Works

6.1            Subject to clause 6.2 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.

6.2            The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any failure by the Client to:

(a)   make a selection; or

(b)   have the site ready for the Works; or

(c)   notify the Contractor that the site is ready.

6.3            At the Contractor’s sole discretion, the cost of delivery is included in the Price.

6.4            The Contractor may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.5            Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Works as agreed solely due to any action or inaction of the Client, then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

 

7. Risk

7.1            If the Contractor retains ownership of the Materials under clause 10 then:

(a)   where the Contractor is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:

(i)     the Client or the Client’s nominated carrier takes possession of the Materials at the Contractor’s address; or

(ii)    the Materials are delivered by the Contractor or the Contractor’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

(b)   where the Contractor is to both supply and install Materials then the Contractor shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.

7.2            Notwithstanding the provisions of clause 7.1 if the Client specifically requests the Contractor to leave Materials outside the Contractor’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

7.3            The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If, for any reason (including but not limited to, the structure not being watertight, the discovery of asbestos, defective or unsafe wiring, or dangerous access etc.) the Contractor reasonably forms the opinion that the Client’s property is not safe for the installation of Materials to proceed then the Contractor shall be entitled to delay installation of the Materials (in accordance with clause 6.2) until the Contractor is satisfied that it is safe for the installation to proceed. The Contractor may in agreement with the Client bring the property up to a standard suitable for installation to proceed but all such Works undertaken and any additional Materials supplied shall be treated as a variation and be charged for in addition to the Price.

7.4            In the event asbestos or any other toxic substances are discovered at the property, that it is the Client’s responsibility to ensure the safe removal of the same. The Client further agrees to indemnify the Contractor against any costs incurred by the Contractor as a consequence of such discovery. Under no circumstances will the Contractor handle removal of asbestos product.

7.5            The Contractor shall upon installation ensure that all Materials are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Client specifically requires the Materials to be installed in any way which goes against the Contractor’s recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to the Contractor. Accordingly, the Contractor offers no warranty in regards to the aforementioned.

7.6            All descriptive specifications, illustrations, drawings, data, dimensions and weights stated in the Contractor’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by the Contractor.

7.7            The Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Contractor accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

7.8            Whilst the Contractor may have provided information or figures to the Client regarding the performance of the Materials, the Client acknowledges that the Contractor has given these in good faith, and are estimates based on Clean Energy Council (CEC) and/or industry prescribed estimates.

7.9            Where the Client has supplied materials for the Contractor to complete the Works, or existing materials are in place, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Contractor shall not be responsible for any defects in the Works, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.

7.10         The Contractor is only responsible for parts that are replaced by the Contractor and that in the event that other parts/materials, subsequently fail, the Client agrees to indemnify the Contractor against any loss or damage to the goods.

7.11         The Materials may fade or change colour over time, expand, contract or distort as a result of exposure, heat, and cold temperatures, mark or stain if exposed to certain substances and be damaged or disfigured by impact or scratching.

7.12         In the event that the property experiences any movement that affects and causes damage to the Materials, the Client accepts and agrees that the Contractor shall not be held liable for any such damage and that the Client shall be responsible for the cost of rectification.

7.13         The Client acknowledges and agree that where the Contractor has performed temporary repairs that:

(a)   the Contractor offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and

(b)   the Contractor will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair.

7.14         In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify the Contractor immediately upon any proposed changes.  The Client agrees to indemnify the Contractor against any additional costs incurred with such a relocation of electrical wiring.  All such variances shall be invoiced in accordance with clause 5.2.

Air Conditioning Risk

7.15         Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 5.2 if the Client requests the unit to not be located adjacent to the external wall, due to the piping required.

7.16         The final location of the wall, window or floor unit must be determined on site by the Client.

7.17         The Contractor shall upon installation ensure that all installed Materials meet current industry standards applicable to noise levels, however the Contractor cannot guarantee that noise levels will remain constant post installation as the Materials may be impacted by many factors such as the weather, lack of maintenance, tampering etc.

7.18         In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved.

7.19         The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.

7.20         The Client acknowledges that the Contractor shall not be responsible or liable for any defect in other appliances or power points as a coincidence of the Contractor installing the Materials.

 

8. Client’s Responsibilities

8.1            Prior to the Contractor commencing the Works the Client must advise the Contractor of the precise location of all services on the site and clearly mark the same. The mains and services the Client 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 site. Whilst the Contractor will take all care to avoid damage to any underground services, the Client agrees to indemnify the Contractor 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 this clause 8.1.

8.2            It is the intention of the Contractor, and agreed by the Client, that it is the responsibility of the Client to:

(a)   ensure that the Contractor has clear and free access to the site at the agreed date/s and time/s to enable the Contractor to undertake the Works. The Contractor shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the Contractor’s negligence; and

(b)   remove any furniture, furnishings or personal goods from the vicinity of the Works. The Contractor shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause; and

(c)   provide the Contractor with facilities, as specified by the Contractor, (including, but not limited to, a suitable free power source) for the duration of the Works.

 

9. Compliance with Laws

9.1            The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.

9.2            The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

9.3            The Client agrees that the site will comply with any SafeWork NSW laws relating to the worksite and any other relevant safety standards or legislation. 

9.4            If during the course of installation when the Works are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by the Contractor then the Contractor shall notify the Client immediately. The power, if isolated, will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Client accepts and agrees that any costs associated with the rectification Works including any Materials and labour shall be to the Client’s account.

9.5            Any live Works or Works undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. The Contractor’s live services procedures are designed to eliminate risk of injury to the Contractor’s employees, damage to the Client’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Works for which additional charges may be applicable. This shall be invoiced in accordance with 5.2.

 

10. Title

10.1         The Contractor and the Client agree that ownership of the Materials shall not pass until:

(a)   the Client has paid the Contractor all amounts owing to the Contractor; and

(b)   the Client has met all of its other obligations to the Contractor.

10.2         Receipt by the Contractor 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.

10.3         It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 10.1:

(a)   the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Contractor on request;

(b)   the Client holds the benefit of the Client’s insurance of the Materials on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;

(c)   the production of these terms and conditions by the Contractor shall be sufficient evidence of the Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Contractor to make further enquiries;

(d)   the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand;

(e)   the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs;

(f)     unless the Materials have become fixtures the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of the Materials;

(g)   the Contractor may recover possession of any Materials in transit whether or not delivery has occurred;

(h)   the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Contractor;

(i)     the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

 

11. Personal Property Securities Act 2009 (“PPSA”)

11.1         In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

11.2         Upon assenting to these terms and conditions in writing the Client 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 Materials and/or collateral (account) – being a monetary obligation of the Client to the Contractor for Works – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.

11.3         The Client 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 Contractor 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 11.3(a)(i) or 11.3(a)(ii);

(b)   indemnify, and upon demand reimburse, the Contractor 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 Materials charged thereby;

(c)   not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;

(d)   not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Contractor;

(e)   immediately advise the Contractor of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.

11.4         The Contractor and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

11.5         The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

11.6         The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

11.7         Unless otherwise agreed to in writing by the Contractor, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.

11.8         The Client shall unconditionally ratify any actions taken by the Contractor under clauses 11.3 to 11.5.

11.9         Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

 

 

 

12. Security and Charge

12.1         In consideration of the Contractor agreeing to supply the Materials, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

12.2         The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.

12.3         The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.

 

13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

13.1         The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify the Contractor in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to inspect the Materials or to review the Works provided.

13.2         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).

13.3         The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

13.4         Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.

13.5         If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.

13.6         If the Contractor is required to replace any Materials under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Client has paid for the Materials.

13.7         If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.

13.8         If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Materials is:

(a)   limited to the value of any express warranty or warranty card provided to the Client by the Contractor at the Contractor’s sole discretion;

(b)   limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Materials;

(c)   otherwise negated absolutely.

13.9         Subject to this clause 13, returns will only be accepted provided that:

(a)   the Client has complied with the provisions of clause 13.1; and

(b)   the Contractor has agreed that the Materials are defective; and

(c)   the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and

(d)   the Materials are returned in as close a condition to that in which they were delivered as is possible.

13.10      Notwithstanding clauses 13.1 to 13.9 but subject to the CCA, the Contractor 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 Client failing to properly maintain or store any Materials;

(b)   the Client using the Materials for any purpose other than that for which they were designed;

(c)   the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d)   interference with the Works by the Client or any third party without the Contractor’s prior approval;

(e)   the Client failing to follow any instructions or guidelines provided by the Contractor;

(f)     fair wear and tear, any accident, or act of God.

13.11      In the case of second hand Material, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Contractor as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Contractor has agreed to provide the Client with the second hand Materials and calculated the Price of the second hand Materials in reliance of this clause 13.11.

13.12      The Contractor may in its absolute discretion accept non-defective Materials for return in which case the Contractor may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.

13.13      Notwithstanding anything contained in this clause if the Contractor is required by a law to accept a return then the Contractor will only accept a return on the conditions imposed by that law.

 

14. Intellectual Property

14.1         Where the Contractor has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Contractor, and shall only be used by the Client at the Contractor’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Contractor.

14.2         The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Contractor has created for the Client.

 

 

 

 

15. Default and Consequences of Default

15.1         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 Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

15.2         If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).

15.3         Further to any other rights or remedies the Contractor may have under this contract, if a Client has made payment to the Contractor, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.

15.4         Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:

(a)   any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when it falls due;

(b)   the Client has exceeded any applicable credit limit provided by the Contractor;

(c)   the Client becomes insolvent or bankrupt, 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 Client or any asset of the Client.

 

16. Cancellation

16.1         Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Works to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.

16.2         The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Contractor for Works already performed. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.

16.3         In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).

16.4         Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

 

17. Privacy Act 1988

17.1         The Client agrees for the Contractor 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 Client in relation to credit provided by the Contractor.

17.2         The Client agrees that the Contractor may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

(a)   to assess an application by the Client; and/or

(b)   to notify other credit providers of a default by the Client; and/or

(c)   to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d)   to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.

17.3         The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.

17.4         The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by):

(a)   the provision of Works; and/or

(b)   analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or

(c)   processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d)   enabling the collection of amounts outstanding in relation to the Works.

17.5         The Contractor may give information about the Client 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 Client including credit history.

17.6         The information given to the CRB may include:

(a)   personal information as outlined in 17.1 above;

(b)   name of the credit provider and that the Contractor is a current credit provider to the Client;

(c)   whether the credit provider is a licensee;

(d)   type of consumer credit;

(e)   details concerning the Client’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 Client no longer has any overdue accounts and the Contractor 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 Contractor, the Client has committed a serious credit infringement;

(h)   advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

17.7         The Client shall have the right to request (by e-mail) from the Contractor:

(a)   a copy of the information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect information; and

(b)   that the Contractor does not disclose any personal information about the Client for the purpose of direct marketing.

17.8         The Contractor will destroy personal information upon the Client’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.

17.9         The Client can make a privacy complaint by contacting the Contractor via e-mail. The Contractor 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 Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

 

18. Dispute Resolution

18.1         If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration.  Any arbitration shall be:

(a)   referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

(b)   conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

 

19. Building and Construction Industry Security of Payments Act 1999

19.1         At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.

19.2         Nothing in this agreement 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.

 

20. Service of Notices

20.1         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.

20.2         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.

 

21. Trusts

21.1         If the Client 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 the Contractor may have notice of the Trust, the Client covenants with the Contractor as follows:

(a)   the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b)   the Client 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 the Client against the Trust or the trust fund. The Client 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)   the Client will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

(i)     the removal, replacement or retirement of the Client 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.

 

22. General

22.1         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.

22.2         These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the courts in that state.

22.3         Subject to clause 13, the Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

22.4         The Contractor may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

22.5         The Client cannot licence or assign without the written approval of the Contractor.

22.6         The Contractor may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.

22.7         The Client agrees that the Contractor may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Works to the Client.

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

22.9         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.