1. Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments
expressed to be supplemental to this Contract.
1.2 “Contractor” means Frozone Air Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Frozone Air
Pty Ltd.
1.3 “Client” means the person/s, entities 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 partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “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).
1.5 "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, D.O.B, occupation, driver’s
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.
1.6 “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 Client
does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right
to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Works via
the website.
1.7 “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.
1.8 “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 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 The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with the
Contractor and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Works request exceeds the Clients credit limit and/or the account exceeds the payment terms, the Contractor
reserves the right to refuse delivery.
2.6 Any advice, recommendation, information, assistance or service provided by the Contractor in relation to Materials or Works supplied is
given in good faith, is based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the
Contractor and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the
Client makes or intends to make of the Materials or Works.
2.7 The Client acknowledges and accepts that:
(a) proposals are prepared on the assumption that the ceiling of the premises at the site where the Materials are to be installed will be
insulated with a minimum thickness of one hundred and seventy-five (175mm) millimetres of fibreglass insulation or R3.5 equivalent; and
(b) the Contractor is to be advised of any changes to the scope of Works at least forty-eight (48) hours prior to the date of installation, if the
Client fails to adhere to this clause and the installation cannot proceed on the agreed date due to changes and/or access to the work site
then the Contractor shall be entitled to charge a call out fee as determined by the Contractor.
(c) where it has been deemed that a warranty repair was not caused due to the Contractor’s faulty workmanship, then the Client shall be
liable for any applicable charges for the rectification Works including a call out fee; and
(d) the Contractor shall be entitled to charge for additional cost in labour where the Contractor’s employees and/or subcontractors are
required to attend a compulsory induction course on the work site, prior to commencement of the Works. The cost for additional labour
will be calculated from the time that the course commences. Induction training attendances will be detailed on invoices issued in
accordance with clause 5.1 unless included in the quote.
2.8 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.
2.9 The Client further 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 6.2 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.
2.10 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 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. Unless otherwise stated, the cost of connecting to a supply authority or levies
imposed by a network or other statutory bodies are not included in the quotation. The Contractor shall not be liable for any consequential
loss sustained by damage to services that could not have been reasonably foreseen and were not disclosed at quotation stage (including
but not limited to services not visible as concealed by hard services etc.)
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, any additional costs incurred by the
Contractor where the Client requests the acceleration of the existing work schedule) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations to
accessing the site, hard rock barriers below the surface or iron reinforcing rods in concrete, 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 Works;
or
(d) in the event of increases to the Contractor in the cost of labour or Materials 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 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) 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
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Contractor.
5.6 The Contractor may in its discretion allocate any payment received from the Client towards any invoice that the Contractor determines and
may do so at the time of receipt or at any time afterwards. On any default by the Client the Contractor may re-allocate any payments
previously received and allocated. In the absence of any payment allocation by the Contractor, payment will be deemed to be allocated in
such manner as preserves the maximum value of the Contractor’s Purchase Money Security Interest (as defined in the PPSA) in the
Materials.
5.7 Payment may be made by cash, bank cheque, credit card (a surcharge may apply per transaction), or by any other method as agreed to
between the Client and the Contractor.
5.8 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.
5.9 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 Where the Contractor has installed and/or completed a section of the Works and handed over to the Client or the Client’s agent, all risk for
the Materials shall pass onto the client (subject to clause 15), and shall be deemed to be practically complete.
6.4 Should the Client request the Contractor to either defer or cease work on a section prior to Materials being installed or Works completed,
then that section shall be handed over to the Client or the Client’s agent and shall be deemed to be practically complete with all risk passing
to the Client.
6.5 The Contractor shall maintain title in any section that has been handed over to the Client with the exception of where any monies paid prior
to or on completion of any such section, then title of that section shall pass to the Client upon the Client’s acceptance of that section.
6.6 At the Contractor’s sole discretion, the cost of delivery is included in the Price.
6.7 The Contractor may deliver the Works in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the
provisions in these terms and conditions.
6.8 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 12 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 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, pipes, cabling, etc.) are of suitable
capacity to handle the Materials once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or
dangerous access to roofing, crawl spaces or inspection points), the Contractor reasonably forms the opinion that the Client’s premises 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 the provisions of clause 6.2 above) until the Contractor is satisfied that it is safe for the installation to proceed. It shall be the
responsibility of the Client to arrange the removal of all such materials. The Contractor, under no circumstances shall undertake the removal
of asbestos.
7.4 Where the Contractor gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the work site for the
installation or similar works and such advice or recommendations are not acted upon then the Contractor shall require the Client or their
agent to authorise commencement of the Works in writing. The Contractor shall not be liable in any way whatsoever for any damages or
losses that occur after any subsequent commencement of the Works.
7.5 The Client must be on site to meet with the installers on the day of the installation to confirm all location before the commencement of the
Works. If the Client fails to comply with this clause, then the Contractor accepts no responsibility for installation decisions that need to be
made by the Contractor in the Client’s absence.
7.6 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 underground piping required. The final location of the wall,
window or floor unit must be determined on site by the Client.
7.7 In the case of Materials being installed during construction adequate space or access panels must be left to enable full servicing of the
Materials installed. The Client shall be liable for any costs incurred to inaccessible Materials irrespective of whether the Materials have been
commission or not.
7.8 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.
7.9 In the event that:
(a) 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; and
(b) 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.
7.10 Where the Client has supplied materials for the Contractor to complete the Works, the Client acknowledges that he 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
materials, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.
7.11 The Client acknowledges that 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 Materials, or caused by
the Materials, or any part thereof howsoever arising.
7.12 The Client acknowledges and agrees 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.
7.13 The Client further acknowledges and agrees that;
(a) it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage; and
(b) any claim made against the Contractor must be made within a period of ten (10) days from the event arising or such claim shall be
waived if the Contractor is notified outside of this timeframe; and
(c) unless otherwise agree in writing, the Contractor shall not be liable to pay pre-ascertained or liquidated damages; and
(d) any defects in the Materials or appearing in the Works after completion due to the Client or any third party using any items that overloads
the structure or system to which the Contractor’s Materials are installed or connected to, or by workmanship not performed by the
Contractor, shall not be covered by any applicable warranty pertaining to the Materials.
7.14 Unless otherwise agreed in writing, the Client acknowledges and accepts that;
(a) where zoning has been quoted as part of a ducted/multi system it is taken that the system does not have the capacity to heat/cool the
entire premises. Zones must be closed down to heat/cool the areas to achieve the rated conditions; and
(b) in some circumstances due to the structure of the building some quoted outlets may not be accessible. The Contractor will not be
responsible for boxing in, positioning and arranging the space required for the droppers.
7.15 Where WIFI modules are being installed, the Contractor is only responsible for the installation of the module and connection from the air
conditioning unit to the module. The Contractor is not responsible for the connection of the module to the Client’s router/modem or setting up
the Client’s mobile device.
7.16 It is the Client’s responsibility to position core holes for the Contractor to complete the Works. The Contractor will not be held liable for any
damages that may arise from the associated Works unless due to the negligence of the Contractor.
7.17 Whilst the Contractor will take all due care when working in ceiling space/cavities, the Contractor will not be liable for any hairline cracks that
may occur and/or where screws become dislodged due to general and normal movement within a ceiling and/or any loss or damage caused
in accessing the work area beyond reasonable control of the Contractor (including, without limitation to ceiling tiles and panels, face
brickwork and rendered masonry services) which the Contractor may have to break into or disturb in performance of the Works), unless due
to the negligence of the Contractor.
7.18 The Contractor shall not be held responsible for any damage to the Works caused by outside agents. Where the Client requests the
Contractor to repair such damage then the Contractor reserves the right to charge the Client for any costs incurred in rectifying such
damage.
7.19 The Client acknowledges that Materials supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
7.20 If the Contractor notifies the Client that it intends to store onsite Materials, plant, equipment or tools to be used in performance of the Works,
then the Client shall designate an area for storage and shall take all reasonable precautions to protect such items against destruction,
damage, or theft. In the event that such items are destroyed, damaged or stolen then the cost of replacement shall be added to the Contract
Price and will be shown as a variation as per clause 5.2.
8. Client’s Responsibilities
8.1 It is the Client’s responsibility to;
(a) maintain the Materials in accordance with the Contractor’s and/or the manufacturers’ recommendations (including but not limited to
cleaning filters, blown fuses, drains, blockage of condenser/evaporator coils and /or failure of any equipment to function properly through
the incorrect setting of any controls etc); and
(b) notify the Contractor in writing of any specific installation requirements or restrictions (including but not limited to the avoidance of doubt,
heritage overlays etc) that may impact on the installation of the Materials; and
(c) ensure that all goods or equipment which the Contractor is required to install (or to connect any of its Materials to) are of the correct type,
size, rating, standard, quality, colour and finish, and generally conform with all relevant Australian standards and local statutory
requirements, and are as specified in the specifications, drawings and plans upon which the Contractor based the quotation on and
therefore, the Client agrees to indemnify the Contractor against any costs incurred by the Contractor in rectifying such errors if required.;
and
(d) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility
of the Client. All care taken but no responsibility accepted by the Contractor in this regard; and
(e) provide and have erected scaffolding to enable the works to be undertaken (where in the Contractor’s opinion it is deemed necessary). It
is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be
suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be
fully licensed; and
(f) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the
installation schedule agreed to between the Contractor and the Client, any additional costs will be invoiced to the Client as an extra.
8.2 The Contractor is not insured to remove furniture or fittings and will not do so, nor is the Contractor licensed to move gas appliances.
9. Underground Locations
9.1 Prior to the Contractor commencing any work the Client must advise the Contractor of the precise location of all underground services on the
site and clearly mark the same. The underground mains & 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 site.
9.2 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 clause
9.1.
10. Site Contamination
10.1 The Client acknowledges and agrees that:
(a) in the course of the Contractor delivering the Materials and Works, the site may suffer minor contamination (including but not limited to
nails, wood shavings and dust etc); and
(b) while the Contractor will endeavour to clear the site of such refuse, the Contractor will not be liable to the Client in any such refuse or
materials are left at the site on completion of the Works.
11. Compliance with Laws
11.1 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.
11.2 The Client shall obtain (at the expense of the Client) all licenses and approvals from the relevant bodies (including but not limited to,
Councils, strata and body corporates etc) that may be required for the Works.
11.3 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.
11.4 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 Works 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 clause 5.2.
11.5 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other
relevant safety standards or legislation.
12. Title
12.1 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.
12.2 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.
12.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 12.1:
(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.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the
PPSA.
13.2 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.
13.3 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 13.3(a)(i) or 13.3(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.
13.4 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.
13.5 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.
13.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 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.
13.8 The Client shall unconditionally ratify any actions taken by the Contractor under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is
intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 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).
14.2 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.
14.3 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 14 including, but not limited to, signing any document on the Client’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 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.
15.2 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).
15.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 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.
15.5 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.
15.6 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.
15.7 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.
15.8 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.
15.9 Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; 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.
15.10 Notwithstanding clauses 15.1 to 15.9 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.
15.11 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 twenty percent (20%) of the value of the returned Materials plus any freight costs.
15.12 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.
16. Intellectual Property
16.1 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.
17. Default and Consequences of Default
17.1 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.
17.2 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).
17.3 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 17 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.
17.4 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.
18. Cancellation
18.1 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.
18.2 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.
18.3 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).
18.4 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.
19. Privacy Policy
19.1 All emails, documents, images or other recorded information held or used by the Contractor is Personal Information, as defined and referred
to in clause 19.3, and therefore considered Confidential Information. The Contractor 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”). The Contractor acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal
Information, held by the Contractor that may result in serious harm to the Client, the Contractor will notify the Client 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 the Client by written consent, unless subject to an operation of law.
19.2 Notwithstanding clause 19.1, privacy limitations will extend to the Contractor in respect of Cookies where transactions for purchases/orders
transpire directly from the Contractor’s website. The Contractor 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 the
Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Contractor when the Contractor sends an email to the Client, so the Contractor may collect and review that
information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the
Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via the
Contractor’s website.
19.3 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, driver’s 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) about the Client in relation to
credit provided by the Contractor.
19.4 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.
19.5 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
19.6 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.
19.7 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.
19.8 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 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).
19.9 The Client shall have the right to request (by e-mail) from the Contractor:
(a) a copy of the Personal Information about the Client retained by the Contractor and the right to request that the Contractor correct any
incorrect Personal Information; and
(b) that the Contractor does not disclose any Personal Information about the Client for the purpose of direct marketing.
19.10 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.
19.11 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.
20. Building and Construction Industry Security of Payments Act 1999
20.1 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.
20.2 Nothing in this Contract 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.
21. Service of Notices
21.1 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.
21.2 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.
22. Trusts
22.1 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.
23. General
23.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it
affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or
unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which the
Contractor has its principal place of business, and are subject to the jurisdiction of the Manly Courts in New South Wales.
23.3 Subject to clause 15, 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).
23.4 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.
23.5 The Client cannot licence or assign without the written approval of the Contractor.
23.6 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.
23.7 The Client agrees that the Contractor may amend their general terms and conditions for subsequent future contracts with the Client by
disclosing such to 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.
23.8 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.
23.9 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.
© Copyright – EC Credit Control 1999 - 2020 # 37237
