Terms & Conditions

1. Definitions

1.1 “Acknowledgment Document” means the document signed by the Client in conjunction with these Terms and Conditions of Trade and applicable if the Agent elects, whereby the Client acknowledges the extent and effect of the provision of security the Client provides to the Agent in consideration of the provision of Goods or Services.
1.2 “Agent” means Specialised & Precision Engineering Pty Ltd ATF The SPE Trust T/A Specialised & Precision Engineering or Reefwise, its successors and assigns or any person acting on behalf of and with the authority of Specialised & Precision Engineering Pty Ltd ATF The SPE Trust T/A Specialised & Precision Engineering or Reefwise.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Agent to provide the Services 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 on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors, and permitted assigns.
1.4 “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.
1.5 “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.
1.6 “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 using the Agent’s 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 making enquiries via the website.
1.7 “Goods” means all Goods or Services supplied by the Agent to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.9 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Agent and the Client in accordance with clause 7 below.

 

2. Acceptance

2.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges and accepts that the supply of Goods on credit shall not take effect until the Client has completed a credit application with the Agent and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Agent reserves the right to refuse delivery.
2.6 The Agent shall be entitled to:
(a) retain any parts and/or consumables replaced during the provision of the Services; and
(b) the right to retain all proceeds obtained from the sale of such parts and/or consumables to any auto recycler or salvage yard.
2.7 The supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, the Agent reserves the right to substitute comparable Goods (or consumables and/or parts of the Goods) and vary the Price as per clause 7.2. In all such cases the Agent will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Goods on hold until such time as the Agent, and the Client agree to such changes.
2.8 In the event that the Agent is required to provide the Services urgently, that may require the Agent’s staff to work outside normal business hours (including, but not limited to, working through lunch breaks, weekends and/or Public Holidays) then the Agent reserves the right to charge the Client a minimum call out fee based on the Agent’s standard hourly labour rate, plus travel, plus Goods, unless otherwise agreed between the Agent and the Client.
2.9 Any advice, recommendation, information, assistance, or service provided by the Agent in relation to Services or Goods supplied is given in good faith to the Client, or the Client’s agent and is based on the Agent’s own knowledge and experience and shall be accepted without liability on the part of the Agent. Where such advice or recommendations are not acted upon then the Agent shall require the Client or their agent to authorise commencement of the Services in writing. The Agent shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.10 These terms and conditions may be meant to be read in conjunction with the Agent’s Hire Form, and where the context so permits, the terms ‘Services’ or ‘Goods’ shall include any supply of Equipment, as defined therein.
2.11 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

3. Authorised Representative

3.1 Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to the Agent as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on theClient’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies the Agent in writing that said person is no longer the Client’s duly authorised representative).
3.2 In the event that the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise the Agent in writing of the parameters of the limited authority granted to their representative.
3.3 The Client specifically acknowledges and accepts that they will be solely liable to the Agent for all additional costs incurred by the Agent (including the Agent’s profit margin) in providing any Services, Goods or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

 

4.Errors and Omissions

4.1 The Client acknowledges and accepts that the Agent 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 Agent 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 Agent in respect of the Services.
4.2 In circumstances where the Client is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) (“Client Error”). The Client must pay for all Goods it orders from the Agent notwithstanding that such Goods suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Goods. The Agent is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

 

5.Change in Control

5.1 The Client shall give the Agent 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 Agent as a result of the Client’s failure to comply with this clause.

 

6. Credit Card Information

6.1 The Agent will:
(a) keep the Client’s personal details, including credit card details for only as long as is deemed necessary by the Agent;
(b) not disclose the Client’s credit card details to any third party; and
(c) not unnecessarily disclose any of the Client’s personal information, except is accordance with the Privacy Act (clause 19) or where required by law.
6.2 The Client expressly agrees that, if pursuant to this Contract, there are any unpaid charges, other amounts due and outstanding by the Client, the Agent is entitled to immediately charge the Client’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Client pursuant to the terms of this Contract.

 

7. Price and Payment

7.1 At the Agent’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Agent to the Client upon placement of an order for Goods; or
(b) the Agent’s quoted Price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2 The Agent reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable specifications or scope of Services) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, unforeseen welding and repairs, as a result of delays from third party suppliers, further faults which are found upon disassembly and/or further inspection, work outside normal business hours, etc.) which are only discovered on commencement of the Services; or
(d) where the Agent is requested to store the Client’s Goods or vehicle, or where Goods or vehicles are not collected within forty-eight (48) hours of advice to the Client that they are ready for collection, then the Agent (at its sole discretion) may charge a fee for storage for periods of time either before or after completion of the Services; or
(e) as a result of an increase in the Agent’s costs due to fluctuations in foreign currency rates of exchange, metal prices, and/or freight and insurance charges etc. with respect to the Services, increases to the Agent in the cost of labour or materials , which are outside the control of the Agent.
7.3 Variations will be charged for on the basis of the Agent’s quotation, and will be detailed in writing, and shown as variations on the Agent’s invoice. The Client shall be required to respond to any variation submitted by the Agent within ten (10) working days. Failure to do so will entitle the Agent to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
7.4 At the Agent’s sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for Goods, in accordance with any quotation provided by the Agent or as notified to the Client prior to the placement of an order for Goods.
7.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Agent, which may be:
(a) on or before delivery of the Goods; or
(b) on completion of the Services; or
(c) by way of instalments/progress payments in accordance with the Agent’s payment schedule; 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; or
(e) for approved credit account holders, either fourteen (14) or thirty (30) days following the date of invoice; or
(f) the date specified on any invoice or other form as being the date for payment; or

(g) 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 Agent.
7.6 Payment may be made by cash, 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 Agent.
7.7 The Agent may in its discretion allocate any payment received from the Client towards any invoice that the Agent determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Agent may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Agent, payment will be deemed to be allocated in such manner as preserves the maximum value of the Agent’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
7.8 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 Agent nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify the Agent in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Agent investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Agent placing the Client’s account into default and subject to default interest in accordance with clause 17.1.
7.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Agent an amount equal to any GST the Agent must pay for any supply by the Agent under this or any other agreement for the sale of the Goods. 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.

 

8. Delivery of Goods

8.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that the Client or the Client’s nominated carrier takes possession of the Goods at the Agent’s address.
8.2 The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.
8.3 The Client shall make all arrangements necessary to avail themselves with the Agent’s production schedule and bookings made to provide the Services. In the event that the Client is unable to deliver their vehicle as arranged, then the Agent may (at the Agent’s sole discretion) reschedule Delivery of the Services and may charge a reasonable administrative fee for the rescheduling, including any change regarding the cost of labour and components and shall be shown as a variation in accordance with clause 7.2.

 

9. Risk
9.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, the Agent is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Agent is sufficient evidence of the Agent’s rights to receive the insurance proceeds without the need for any person dealing with the Agent to make further enquiries.
9.3 If the Client requests the Agent to leave Goods outside the Agent’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
9.4 The Agent shall be entitled to rely on the accuracy of any plans (including, but not limited to, specifications, measurements, weights and other information etc.,) 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 Agent accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.5 Where the Contract does not include installation of Goods by the Agent, the Agent shall not be liable for any defect or damage resulting from incorrect or faulty installation.
9.6 The Client warrants that the structure of the vehicle or equipment in or upon which the Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Agent shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the vehicle or equipment be unable to accommodate the installation.
9.7 In the event that vehicle systems and accessories is required to be re-positioned and/or installed, then the Client agrees to indemnify the Agent against any additional costs incurred with such a relocation and/or installation of vehicle systems and accessories. All such variances shall be invoiced in accordance with clause 7.2.
9.8 The Client acknowledges that for specific Services required, that the following factors may impact on the finished items:
(a) the metal type, thickness, and gauge to be used; and
(b) the length of metal the machinery can process at any one time.
9.9 The Agent shall take all reasonable care and skill when undertaking the Services (including where the Agent or its employees (at the Agent’s sole discretion) carries out tests on the Goods/machinery); but no liability will be accepted by the Agent for (and the Client indemnifies the Agent against) any damage howsoever causes, except due to the express negligence of the Agent or the Agent’s employees.
9.10 The Client acknowledges that:
(a) the Agent is only responsible for parts that are replaced by the Agent and does not at any stage accept any liability in respect of previous services and/or components supplied by any other third party that subsequently fail and found to be the source of the failure, the Client agrees to indemnify the Agent against any loss or damage to the Services, or caused thereby, or any part thereof howsoever arising;
(b) Goods supplied may:
(i) exhibit variations in shade tone, colour, texture, surface and finish. The Agent will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur;
(ii) fade or change colour over time;
(iii) expand, contract or distort as a result of exposure to heat, cold, weather;
(iv) mark or stain if exposed to certain substances;
(v) be damaged or disfigured by impact or scratching; and
(vi) that all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in the Agent’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 Agent.

9.11 The Agent will accept no responsibility for valuables or other items left in the Client’s vehicle. It is the Client’s responsibility to remove any valuables from the Client’s vehicle prior to commencement of the Services.
9.12 The Client acknowledges and agrees that where the Agent have performed temporary repairs or welding of joins or metal tears, that the Agent:
(a) offers no guarantee against the reoccurrence of the initial fault, or any further damage caused;
(b) will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair; and
(c) shall not be held liable for any losses or damages resulting from the remedial welding put under excessive or inappropriate strain.

 

10. Insurance

10.1 As a condition of entry onto the Agent’s property the Client acknowledges and accepts that the Agent is not liable for any damage caused to any of the Client’s vehicles or goods by unforeseen circumstances, acts of third parties or acts of God. The Agent hereby advises the Client that they should hold their own insurance as the Agent will not accept any liability for such claims.
10.2 It is the Client’s responsibility to ensure that the Client’s vehicle is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at the Agent’s premises. The vehicle is at all times stored at the Client’s sole risk.

 

11. Compliance with Laws
11.1 The Client and the Agent shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services.
11.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.

 

12. Title

12.1 The Agent and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Agent all amounts owing to the Agent; and
(b) the Client has met all of its other obligations to the Agent.
12.2 Receipt by the Agent 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 Goods passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Goods and must return the Goods to the Agent on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Agent and must pay to the Agent the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Agent and must pay or deliver the proceeds to the Agent on demand;
(d) the Client should not convert or process the Goods 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 Agent and must sell, dispose of or return the resulting product to the Agent as it so directs;
(e) the Client irrevocably authorises the Agent to enter any premises where the Agent believes the Goods are kept and recover possession of the Goods;
(f) the Agent may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Agent; and
(h) the Agent may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods 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 Goods that have previously been supplied and that will be supplied in the future by the Agent to the Client, and the proceeds from such Goods.
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 Agent 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 Agent for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Agent;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of the Agent; and
(e) immediately advise the Agent of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
13.4 The Agent 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 waives their 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 their 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 Agent, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Client must unconditionally ratify any actions taken by the Agent 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 Agent agreeing to supply the Goods and/or provide its Services and as acknowledged by the Agent in accordance with any Acknowledgment Document the Client grants the Agent a security interest by way of a floating charge (registerable by the Agent pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, including but not limited to those set out in any Acknowledgment Document, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods and/or Services under this Contract and/or permit the Agent to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).
14.2 The Client indemnifies the Agent from and against all the Agent’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Agent’s rights under this clause.
14.3 In the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 12.1,13.2 and 14.1 as applicable, is deemed insufficient by the Agent to secure the repayment of monies owed by the Client to the Agent, the Client hereby grants the Agent a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money), in accordance with the Acknowledgement Document.

 

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

15.1 The Client must inspect the Goods on Delivery and must within seven (7) days of Delivery notify the Agent 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 Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Agent to inspect the Goods.
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 Agent 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 Agent makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Agent’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 Agent’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If the Agent is required to replace the Goods under this clause or the CCA, but is unable to do so, the Agent may refund any money the Client has paid for the Goods.
15.7 If the Client is not a consumer within the meaning of the CCA, the Agent’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Agent at the Agent’s sole discretion;
(b) limited to any warranty to which the Agent is entitled, if the Agent did not manufacture the Goods; and/or
(c) otherwise negated absolutely.
15.8 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 Agent has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, the Agent 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 Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by the Agent; and/or
(e) fair wear and tear, any accident, or act of God.
15.10 Notwithstanding anything contained in this clause if the Agent is required by a law to accept a return, then the Agent will only accept a return on the conditions imposed by that law.

 

16. Intellectual Property

16.1 Where the Agent has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Agent. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Agent.
16.2 The Client warrants that all designs, specifications, or instructions given to the Agent will not cause the Agent to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Agent against any action taken by a third party against the Agent in respect of any such infringement.

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

 

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 Agent’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 Agent any money, the Client shall indemnify the Agent from and against all costs and disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Client would be liable;
in regard to legal costs on a solicitor and own client basis incurred in exercising the Agent’s rights under these terms and conditions, internal administration fees, the Agent’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
17.3 Further to any other rights or remedies the Agent may have under this Contract, if a Client has made payment to the Agent, 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 Agent 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 Agent’s other remedies at law the Agent shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Agent shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Agent becomes overdue, or in the Agent’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 Agent;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

18. Cancellation

18.1Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Goods and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
18.2 If the Agent, due to reasons beyond the Agent’s reasonable control, is unable to deliver any Goods and/or Services to the Client, the Agent may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Client. On giving such notice the Agent shall repay to the Client any money paid by the Client for the Goods and/or Services. The Agent shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 The Client may cancel Delivery of the Goods and/or Services by written notice served within forty-eight (48) hours of placement of the order. If the Client cancels Delivery in accordance with this clause 18.3, the Client will not be liable for the payment of any costs of the Agent, except where a deposit is payable in accordance with clause 7.4. Failure by the Client to otherwise accept Delivery of the Goods and/or Services shall place the Client in breach of this Contract.
18.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will 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 Agent is Personal Information, as defined and referred to in clause 19.4, and therefore considered Confidential Information. The Agent 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 Agent acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Agent that may result in serious harm to the Client, the Agent 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 Agent in respect of Cookies where the Client utilises the Agent’s website to make enquiries. The Agent 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 Agent when the Agent sends an email to the Client, so the Agent may collect and review that information (“collectively Personal Information”).
If the Client consents to the Agent’s use of Cookies on the Agent’s website and later wishes to withdraw that consent, the Client may manage and control the Agent’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
19.3 The Client agrees for the Agent 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 Agent.
19.4 The Client agrees that the Agent 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 Agent being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
19.6 The Client agrees that personal credit information provided may be used and retained by the Agent for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
19.7 The Agent 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 19.4 above;
(b) name of the credit provider and that the Agent 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 (provided the Agent is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Agent 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 Agent, the Client has committed a serious credit infringement; or
(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 Agent:
(a) a copy of the Personal Information about the Client retained by the Agent and the right to request that the Agent correct any incorrect Personal Information; and
(b) that the Agent does not disclose any Personal Information about the Client for the purpose of direct marketing.
19.10 The Agent will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required 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 Agent via e-mail. The Agent will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If 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. Unpaid Seller’s Rights

20.1 Where the Client has left any item with the Agent for repair, modification, exchange or for the Agent to perform any other service in relation to the item and the Agent has not received or been tendered the whole of any monies owing to it by the Client, the Agent shall have, until all monies owing to the Agent are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
20.2 The lien of the Agent shall continue despite the commencement of proceedings, or judgment for any monies owing to the Agent having been obtained against the Client.

 

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; or
(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 or as an agent for a trust (“Trust”) then whether or not the Agent may have notice of the Trust, the Client covenants with the Agent as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
(b) the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be 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, the trustees and 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 during the term of the Contract without consent in writing of the Agent (the Agent 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 fund or trust property.

 

23. General

23.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
23.2 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, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of Western Australia, and are subject to the jurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
23.4 The Agent may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
23.5 The Client cannot licence or assign without the written approval of the Agent.
23.6 The Agent may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Agent’s sub-contractors without the authority of the Agent.
23.7 The Client agrees that the Agent 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 Agent to provide Goods 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, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc., (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to the Agent, once the parties agree that the Force Majeure event has ceased.
23.9 Both parties warrant that they have the power to enter 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.
23.10 This Contract and any subsequent hire agreement between the Agent and the Client, shall constitute as the entire agreement between the Agent and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by the Agent that is not embodied in this Contract.
23.11 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
23.12 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.