NEWLANDS SHUTTERS & BLINDS PTY LTD (ACN 152 610 323)
TRADING AS SP SHUTTERS, DOORS & BLINDS (ABN 68 856 189 781)
TERMS AND CONDITIONS OF TRADE
“ACL” means the Australian Consumer Law set out in a Schedule to the Act;
“Act” means the Competition & Consumer Act 2010 (Cth);
“Approved Credit Limit” has the meaning given to that term in Clause 4.1.3;
“Business Days” means a day on which banks are open for business in Melbourne, Victoria;
“Claim” means any claim, demand, action or proceeding;
“Consumer Guarantee” has the meaning given to that term in the Act;
“Collateral” has the meaning given under the PPSA and in particular for the purposes of this Contract, the personal property that is not used predominately for personal, domestic or household purposes as identified in Clause 7 hereof to which the Security Interest has attached;
“Company” means Newlands Shutters & Blinds Pty Ltd (ACN 152 610 323) trading as SP Shutters, Doors & Blinds (ABN 68 856 189 781) and their successors and assigns;
“Contract” means the contract between the Company and the Customer for or in relation to the sale and the purchase of the Goods and/or the Services;
“Application for Credit Form” means any form accepted by the Company as an application for credit;
“Customer” means the person or entity ordering the Goods and/or the Services from the Company, as shown on the invoice, purchase order or other document evidencing the order for the Goods and/or the Services;
“EFT” means Electronic Funds Transfer of clear funds;
“GST” means the goods and services tax levied under the GST Act;
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended;
“Guarantor” means that person (or persons) or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis, as shown on the Application for Credit Form.
“Goods” means any and all product(s) and/or goods supplied by the Company to the Customer including inter alia, goods which are the subject of an order placed with the Company by the Customer (and where the context so permits, includes any supply of the Services);
“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time;
“PPS Register” means the personal property securities register established under section 146 of the PPSA;
“Price” means the costs of the Goods and/or the Services, as agreed between the Company and the Customer and subject to Clause 4.3 hereof.
“Security Interest” has the meaning given under the PPSA;
“Services” means all services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits, includes any supply and installation of the Goods).
“Terms” means these Terms and Conditions of Trade, as amended from time to time by the Company.
2. CONTRACT AND ACCEPTANCE
2.1 The Customer and the Company agree that:
2.1.1 the Goods and/or the Services will be supplied in accordance with the Terms. All other terms (whether comprised in an invoice, purchase order or otherwise) are excluded unless they are in writing and signed by or on behalf of the Company;
2.1.2 any instructions received by the Company from the Customer for the supply of the Goods and/or the Services and the Customer’s acceptance of the Goods supplied and/or the Services rendered by the Company will constitute acceptance of the Terms;
2.1.3 the Terms will apply to all transactions entered between the parties after the date hereof and whether or not such future transactions have been reduced to writing;
2.1.4 the Terms are irrevocable and can only be rescinded in accordance with the Terms or with the written consent of the manager of the Company; and
2.1.5 the Terms and any warranties implied by law which are not capable of being excluded or modified embody the whole agreement between the parties.
2.2 Where more than one Customer has entered into this agreement, the Customers will be jointly and severally liable for payments of the Price.
2.3 The Customer undertakes to give the Company not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to changes in the Customer’s address, telephone or facsimile number or business practice).
3. QUOTATIONS AND ORDERS
3.1 Any quotation given by the Company to the Customer is not an offer or obligation to sell but an invitation to treat only. The Company reserves the right to accept or reject any order it receives.
3.2 A quotation is open for acceptance within the period stated in the quotation or within thirty (30) days if no period is stated.
3.3 The Company is not obliged to supply the Goods and/or the Services so ordered to the Customer. The Company reserves the right to refuse any order based on a quotation within seven (7) days after receiving the order.
3.4 Prices quoted in any order apply to that order only and do not apply in any other circumstances.
3.5 If the Customer defaults in the performance or observation of its obligations under the Terms, the Company may cancel, suspend or vary the terms and conditions of any incomplete order that has been accepted by the Company without notice to the Customer and without being liable to the Customer.
3.6 The Goods and/or the Services are as described on the invoice(s), quotation, work authorisation or any other work commencement forms as provided by the Company to the Customer.
4. CREDIT, PAYMENT AND PRICE
4.1.1 The Company may, but is not obliged to, supply the Customer with the Goods and/or the Services on credit terms. If it does so, this clause applies.
4.1.2 The Company will require the Customer to complete an Application for Credit Form, as a condition of extending credit.
4.1.3 The Company may withdraw, suspend or vary the conditions of credit at any time, in its absolute discretion. The Company may set and vary credit limits for the Customer from time to time (the Approved Credit Limit). The Company may require the Customer to make a payment on or prior to delivery, collection or production of the goods, at any time.
4.1.4 The Customer warrants and acknowledges that:
4.3.1 At the Company’s sole discretion:
a) the Price will (subject to Clause 4.3.2) be the Company’s quoted price which will be binding on the Company provided that the Customer will accept in writing the Company’s quotation within thirty (30) days.
b) the Price will be as indicated on invoices provided by the Company to the Customer in respect of the Goods supplied and/or the Services rendered; or
4.3.2 Any variation from the plan of scheduled works or specification will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3.3 The Price will be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that any such GST and other taxes are expressly included in any quotation given by the Company.
5 DELIVERY OF GOODS AND/OR SERVICES
5.1 Delivery of the Goods and/or the Services will be made to the Customer’s address. The Customer will make all arrangements necessary to take delivery of the Goods and/or the Services whenever they are tendered for delivery.
5.2 Delivery of the Goods to a carrier, either named by the Customer or failing such naming, to a carrier at the discretion of the Company for the purposes of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
5.3 Any delivery times notified to the Customer are estimates only and the Company is not responsible for any delays in delivery of the Goods.
5.4 If the Customer requests the Company to postpone delivery of the Goods beyond the delivery/collection date or dates specified in the order, the Company may agree to do so if the Customer pays an additional fee for such postponement and for storage charges.
5.5 The Company is not responsible to the Customer or liable for any loss or damage whatsoever due to failure by the Company to deliver the Goods (or any of them) promptly or at all.
5.6 The failure of the Company to deliver will not entitle either party to treat this Agreement as repudiated.
Except as otherwise provided herein, the Goods supplied by the Company to the Customer will be at the Customer’s sole risk immediately on their delivery to the Customer.
7 TITLE AND OWNERSHIP
7.1 Ownership of, or title in, the Goods will not pass to the Customer until the Customer has paid to the Company the invoiced price for all goods in the Customer’s possession at time of payment and the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Terms.
7.2 If for any reason the Goods become lost or damaged after delivery to the Customer and prior to payment, the Customer agrees that it will indemnify the Company for any expense caused by any such loss or damage.
7.3 The Customer undertakes to store the Goods on its premises separately until the Company receives payment and all other obligations of the Customer are met.
7.4 The Customer’s right to possession of the Goods ceases if it does anything or fails to do anything which would entitle a receiver, a receiver and manager, an administrator or a trustee to be appointed in respect of the Customer, its undertaking or property or any part thereof, or entitle a person to present a creditor’s petition for winding up the Customer.
7.5 The Company may for the purpose of examination or recovery of the Goods enter upon any premises where the Goods are stored or where they are reasonably thought to be stored.
7.6 These provisions apply notwithstanding any arrangement under which the Company provides credit to the Customer. To the extent that there is any inconsistency these provisions prevail.
7.7 On payment to the Company of the total purchase price for the Goods, the Customer will obtain good title to the Goods ordered, free and clear from all encumbrances.
7.8 The Customer agrees with the Company that it will treat the security interest in the Goods as a continuing and subsisting security with priority over a registered general security and any unsecured creditors.
7.9 Subject to the PPSA, it is further agreed that:
a) until such time as ownership of the Goods will pass from the Company to the Customer, the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice, the rights of the Customer to obtain ownership or any other interest in the Goods will cease;
b) if the Customer fails to return the Goods to the Company, then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused;
c) the Customer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Customer will hold any proceeds from the sale or disposal of the Goods on trust for the Company;
d) the Customer will not deal with the proceeds from any such sale or disposal of the Goods of the Company in any way which may be adverse to the Company;
e) receipt by the Company of any form of payment other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership of rights in respect of the Goods will continue;
f) the Customer will not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company;
g) the Company may require payment of the Price or the balance of the Price due together with any other amounts due from the Customer to the Company arising out of the Terms and the Company may take any lawful steps to require payment of the amounts due and the Price;
h) the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
8 PERSONAL PROPERTY SECURITIES ACT 2009 (CTH)
8.1 The terms used in this Clause 8 have the same meaning as in the PPSA.
8.2 The Customer acknowledges and agrees that by accepting the Terms which form part of the Agreement and constitute a Security Agreement that covers the Collateral for the purposes of the PPSA:
a) the Company holds (as Secured Party) a Security Interest over all of the present and after acquired Goods supplied by the Company to the Customer and any Proceeds of the sale of those Goods (“Collateral”);
b) that any purchase by the Customer on credit terms from the Company or retention of title supply pursuant to Clause 7 hereof will constitute a purchase money security interest as defined under section 14 of the PPSM (“PMSI”);
c) the PMSI granted herein will continue to apply to any Goods coming into existence or proceeds of sale of Goods coming into existence;
d) the Company will continue to hold a Security Interest in the Goods in accordance with and subject to the PPSA, notwithstanding that the Goods may be processed, commingled or become an accession with other Goods;
e) any Company Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all registered or unregistered Security Interest;
f) until title in the Goods pass to the Customer, it will keep all Goods supplied by the Company free and ensure all such Goods are kept free of any charge, lien or Security Interest and not otherwise deal with the Goods in a way that will or may prejudice any rights of the Company under the Contract or the PPSA; and
g) in addition to any other rights under the Terms or otherwise arising, the Company may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Customer, to search for and seize, dispose of or retain those Goods in respect to which the Customer has granted a Security Interest to the Company.
8.3 The Customer undertakes to:
a) sign any further documents and provide such information which the Company may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;
b) indemnify and upon demand reimburse the Company for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or releasing any Security Interests;
c) not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of the Company; and
d) provide the Company not less than seven (7) days prior written notice of any proposed change in the Customer’s name, address, contact numbers, business practice or such other change in the Customer’s details registered on the PPS Register to enable the Company to register a Financing Change Statement if required.
8.4 The Company and the Customer agree that sections 96, 125 and 132(3)(d), 132(4) and 134(1) of the PPSA do not apply to the Security Agreement created by the Terms.
8.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4) and 135 of the PPSA.
8.6 The Customer waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Customer will unconditionally ratify any actions taken by the Company under this Clause 8.
8.9 This Clause 8 will survive the termination of this agreement to the extent permitted by the law.
9 CONSUMER GUARANTEES
9.1 Nothing in the Terms purports to modify or exclude the Consumer Guarantees, or any other right available to the Customer under the Act (including the ACL), except to the extent permitted by the Act where applicable.
9.2 Except as expressly set out, the Company makes no express warranties or other representations under the Terms.
10 CUSTOMER’S DISCLAIMER
The Customer hereby disclaims any right to rescind or cancel the agreement with the Company or to sue for damages or to claim restitution arising out of any misrepresentation made to them by any servant or agent of the Company and the Customer acknowledges that they buy the Goods relying solely upon their own skill and judgement and that the Company will not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the manufacturer which warranty will be personal to the Customer and will not be transferable to any subsequent customer.
11 DEFECTS AND RETURNS
11.1 The Customer will inspect the Goods on delivery and will within two (2) days of delivery notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer will afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer fails to comply with these provisions, the Goods will be conclusively presumed to be in accordance with the Terms and free from any defect or damage.
11.2 For defective Goods, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods provided that:
a) the Customer has complied with the provision of Clause 11.1;
b) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date;
c) the Company will not be liable for Goods which have not been stored or used in a proper manner;
d) the Goods are returned in the condition in which they were delivered and with all, brochures and instruction material in as new condition as is reasonable possible in the circumstances.
11.3 The Company may (in its discretion) accept the Goods for credit but this may incur a handling fee of 20% of the value of the returned Goods plus any freight.
12 LIMITATION OF LIABILITY
12.1 The Company’s liability in respect of the Consumer Guarantees and any other warranties is limited to the fullest extent permitted by law.
12.2 To the extent permitted by law, the liability of the Company from the failure of any goods supplied by it to the Customer to comply with the Consumer Guarantees or any other warranty or condition implied by law will be limited to (at the Company’s option), in the case of goods, any one of the following:
a) the replacement or resupply of the goods; and
b) the cost of replacement or resupply of the goods.
12.3 To the full extent permitted by law, the Customer hereby indemnifies and holds the Company, its servants and agents and each of them harmless against all claims or loss or damage arising directly or indirectly out of the Customer’s use, possession or ownership of the Goods.
12.4 The Company will not be liable or deemed to be in default or failure in performance under the Terms for any interruption resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, wars, accidents, fires, explosions, earthquakes, floods, strikes, labour disputes, Government action, shortage of suitable parts, or any similar or dissimilar cause beyond the reasonable control of the Company.
12.5 Except as expressly stated in the Terms, the Company accepts no other responsibility or liability whatsoever including liability for negligence or any liability for consequential loss, howsoever arising. All conditions and warranties contained or implied by any statute or rule of law are hereby expressly excluded and negated provided that nothing in the Terms will exclude, restrict or modify any condition, warranty or liability of any statute which may at any time be implied in the Terms where to do so is illegal or would render any provision of the Terms void.
13.1 For Goods not manufactured by the Company, the warranty will be the current warranty provided by the manufacturer of the Goods. The Company will be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
13.2 The conditions applicable to the warranty given on the Goods and/or Services supplied by the Company are contained on the “Warranty Card” that will be supplied with the same.
13.3 The Customer releases and indemnifies the Company and its officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Customer and whether at common law, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness, cost or damage arising out of any breach by the Customer of any warranty or undertaking provided by it under these terms and conditions.
14 INTELLECTUAL PROPERTY
Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of the Company, then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods will not infringe the rights of any third party.
15 DEFAULT AND CONSEQUENCES OF DEFAULT
15.1 Interest on overdue invoices will accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month or part thereof and will accrue at such a rate after as well as before any judgement and the Customer will be liable for, and expressly undertakes to pay, all such interest.
15.2 If the Customer defaults in payment of any invoice when due, the Customer:
a) hereby irrevocably gives to the Company a license, in addition to and without limitation of any other right it may have, without notice, to enter on the premises where any of the Goods are kept and repossess the same and thereafter to deal with the Goods as its own property;
b) the Customer acknowledges that to the maximum extent possible by law it will do all things that may be reasonably requested by the Company including the obtaining of permission of any person or company to enter upon the premises where any of the said Goods may be located in order to give effect to this covenant.
c) the Customer will indemnify the Company from and against all loss or outgoings suffered as a result of any breach or non-compliance by the Customer of any of the Terms (including but not limited to payment by the Customer of all legal expenses incurred by the Company in collecting any outstanding debt due by the Customer to it (on an indemnity basis)).
15.3 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of the Goods and/or the Services to the Customer and any of its other obligations under the Terms. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercised its rights under this clause.
15.4 If any account remains unpaid at the end of the second month after supply of the Goods and/or the Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue will be levied for administration costs which sum will become immediately due and payable.
15.5 In the event that:
a) any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due; or
b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer,
then without prejudice to the Company’s other remedies at law:
(i) the Company will be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii ) all amounts owing to the Company will, whether or not due for payment immediately become payable.
16 GOODS AND SERVICES TAX (GST) AND OTHER TAXES
16.1 Expressions used in this Clause and in the GST Act have the same meanings as when used in the GST Act.
16.2 Except where the Terms state otherwise, each amount payable by a party under the Terms in respect of a taxable supply by the other party is expressed as a GST exclusive amount and the recipient of the supply must, in addition to that amount and as the same time, pay to the supplier the GST payable in respect of the supply.
16.3 A party is not obliged, under Clause 16.2 to pay the GST on a taxable supply to it under the Terms, until given a valid tax invoice for the supply.
16.4 Any other taxes, duty or charge imposed or which hereafter may be imposed by an Federal, State or other authority must be paid by the Customer, unless the Customer provides the Company with an exemption certificate acceptable to the Company.
The Company may cancel the Terms or cancel delivery of the Goods and/or the Services at any time before the Goods and/or the Services are due to be delivered by giving written notice. The Company will not be liable for any loss or damage whatever arising from such cancellation.
The parties hereto agree that the Terms may be terminated by the Company by giving to the Customer fourteen (14) days written notice. The Terms will remain in full force and effect in respect of any transaction effected prior to
19 GUARANTEE AND INDEMNITY
19.1 The Guarantor/s in consideration of the Company supplying the goods to the Customer, at the request of the Customer, and on the Terms, do hereby for themselves, their respective executors and administrators jointly and severally covenant with the Company that if at any time default will be made in the payment of money payable by the Customer to the Company under the Terms or in the performance, observance or any term or condition of the Terms to be performed or observed by the Customer, the Guarantors will forthwith on demand by the Company pay to the Company the whole of such money, interest or other moneys which will then be due and payable to the Company and will keep the Company indemnified against all loss of money, interest and other moneys payable under the Terms and all losses, costs, charges and expenses whatsoever which the Company may incur by reason of any default as aforesaid on the part of the Customer.
19.2 This Guarantee is unlimited and will be a continuing Guarantee and will not be released by any neglect or forbearance on the part of the Company in enforcing payment of any of the moneys payable under the Terms or the performance or observance of any of the agreements, obligations or conditions under the Terms, the improper execution of the Terms (and the Guarantee contained herein) by the Guarantor/s or by time being given to the Customer for any such payment, performance or observance or by any other thing which under the law relating to sureties would but for this provision have the effect of releasing the Guarantors and the Guarantor’s respective executors or administrators.
19.3 The Guarantor/s acknowledge(s) having been provided with the opportunity to obtain independent legal and/or financial advice with respect to the Guarantee contained in the Terms.
20.1 Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interests in the said land, realty or any other asset to the Company or their nominee to secure all amounts and other monetary obligations payable under the Terms.
20.2 The Customer and/or the Guarantor acknowledge and agree that the Company (or their nominee) will be entitled to lodge, where appropriate, a caveat, which caveat will be withdrawn once all payments and other monetary obligations payable under the Terms have been met.
20.3 Should the Company elect to proceed as set out in Clause 20.1, the Customer and/or the Guarantor will indemnify the Company from and against all their costs and disbursements including legal costs on a solicitor and own client basis.
20.4 The Customer and/or the Guarantor (if any) agree to irrevocably nominate, constitute and appoint the Company or its nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this Clause 20.
The Terms are to be interpreted in accordance with the Acts of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the Courts of that State. The Company takes no responsibility for changes in the law which affect the Goods supplied.
22 CONTINUING ACCOUNT
The Customer agrees to immediately notify the Company in writing of any change in ownership of the business or other material alteration to the statements herein and unless and until the Company acknowledges the same in writing, the Customer agrees to be bound by the terms herein and to be responsible for all debts incurred on the account.
23 COSTS AND CHARGES
The Customer agrees to indemnify the Company for all duties and costs including the Company’s costs of and incidental to the preparation, execution and enforcement of the Terms.
24 UNPAID COMPANY’S RIGHT TO DISPOSE OF GOODS
24.1 Subject to the PPSA, in the event that:
a) the Company retains possession or control of the Goods; and
b) payment of the Price is due to the Company; and
c) the Company has made demand in writing of the Customer for payment of the Price in terms of this Contract; and
d) the Company has not received the Price of the Goods
then, whether the property in the Goods has passed to the Customer or has remained with the Company, the Company may dispose of the Goods and may claim from the Customer the loss to the Company on such disposal.
25 PRIVACY ACT 1988
25.1 The Customer and/or the Guarantor/s agrees for the Company to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer and the Guarantor/s in relation to credit provided by the Company.
25.2 The Customer and/or the Guarantor/s agreed that the Company may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Credit, account or names in a consumer credit report issued by a reporting agency for the following purposes:
a) to access an application by the Customer;
b) to notify other credit providers of a default by the Customer;
c) to exchange information with other credit provides as to the status of this credit amount, where the Customer is in default with other credit providers; and
d) to assess the credit worthiness of Customer and/or Guarantor/s.
25.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
25.4 The Customer agrees that Personal Data provided may be used and retained by the Company for the following purposes and for other purposes as agreed between the Customer and the Company or required by law from time to time:
a) provision of the Goods (and/or the Services);
b) marketing of the Goods (and/or the Services) Goods by the Company;
c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of the Goods (and/or the Services);
d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and
e) enabling the daily operation of the Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the and Goods (and/or the Services).
25.5 The Company may give information about the Customer to a credit reporting agency for the following purposes:
a) to obtain a consumer credit report about the Customer; and/or
b) to allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
26.1 Time: time is of the essence for all the Customer’s obligations and in the Terms.
26.2 Entire Agreement: the Terms contain the entire agreement between the parties and supersede all previous agreements concluded between the parties. Each order and invoice (or delivery/collection slip) will constitute a binding and enforceable contract between the Company and the Customer on the terms set out in the Terms. Any attempt by the Customer to impose any variation or additional terms inconsistent with the Terms will not bind the Company. The Customer acknowledges that it has not been induced to enter into the Terms by any representation, advice or information given or made by or on behalf of the Company.
26.3 Compliance with Regulations: the Customer acknowledges and agrees that it must, at its sole cost and expense, ensure the electrical switchboard at the property at which the Goods are installed and/or the Services are provided has a safety switch and is otherwise compliant with all current safety regulations and standards (including but not limited to ANZS3000). Any change required to be made to the switchboard will be at the cost of the Customer.
26.4 Assignment: the Customer will not assign its order nor any of its rights or obligations thereunder without the prior written consent of the Company.
26.5 Waiver: no waiver by the Company of any breach of these terms and conditions operates as a waiver of any other breach, and the doing and/or omission of any act, matter or thing whatsoever by the Company, its employees or agents (which but for this clause ought or might amount to a waiver of the Company’s rights in respect of any such breach or default) does not operate as a waiver in any way of the Company’s rights and powers in respect of such breach or default.
26.6 Severability: if any term agreement or condition of the Terms or the application thereof to any person or any circumstance will be or become illegal, invalid or unenforceable, the same will be read down, if such reading down is possible, and if found to be impossible, will be severed and the remaining terms and agreements and conditions will not be affected, prejudiced or impaired.
26.7 PPSA: if any provisions of the Terms are inconsistent with the PPSA, the PPSA will prevail to the extent of that inconsistency.
26.8 Non-Merger: a provision of the Terms which can, and is intended to, operate after the effective date remains effective.
26.9 Dispute Resolution: if a dispute arises out of, or in any way in connection with, or otherwise relates to the supply of the Goods (and/or the Services), the Terms or the breach, termination, validity or subject matter thereof, or as to any related claim at law, in equity or pursuant to any statute, the Customer and the Company agree that before commencing legal proceedings, they will submit to mediation in accordance with the Australian Commercial Disputes Centre (ACDC) Guidelines for Commercial Mediation. The parties will agree on the appointment of a mediator and if they are unable to agree on the mediator within 14 days after a written request by either party to commence mediation, then the mediator will be appointed by the Institute of Arbitrators and Mediators Australia in accordance with the ACDC Guidelines for Commercial Mediation. If the mediation process fails to resolve the dispute within 21 days (or such other period agreed by the parties) then either party may then institute legal proceedings.
26.10 Notices: any notice required under the Terms must be in writing and given by post, facsimile or hand to the Company or the Customer at the address set out in the Terms or at such other address or facsimile number as is notified in writing by one party to the other.
26.11 Variation: the Company reserves the right to review the Terms at any time and from time to time. If following any such review, there is to be any change in the Terms, that change will take effect from the date on which the Company notifies the Customer of such change. No variation of any of the Terms will be effective unless such variation is in writing and signed by an authorised representative of the Company.