1. DEFINITIONS & INTERPRETATION
- 1.1 “ADI” means authorised deposit-taking institution and has the same meaning as in the Banking Act 1959;
- 1.2 “Agreement” includes any agreement for the supply of Goods or Services (or both) by the Seller to the Customer;
- 1.3 “Customer” means the customer (or any person acting behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Seller to the Customer;
- 1.4 “Goods” mean goods or products supplied by the Seller to the Customer (and where the context so permits shall include any supply of Services) as described on the Purchase Order(s) and Invoice(s);
- 1.5 “Intellectual Property” includes but is not limited to all trademarks, patents, copyright, designs, marks, processes, know-how, methodology, concepts, models, specifications, statements, formulae, trade secrets, manner of new manufacture, drawings, artwork and data or other like property or rights owned or held by the Seller. These rights include but are not limited to:
- a. Marks, logos, images, service marks, trade names, business names, internet domain names, slogans, symbols, brand names, copyright or other trade indicia; and
- b. All rights in information, know-how, processes, procedures, compositions, devices, methods, formulae, protocols, techniques, software, designs, drawings, programs, source code, dynamic link libraries, graphical user interfaces, trade secrets or data whether or not protectable by patent application design registration, copyright, circuit layouts or otherwise, whether unregistered, registered or registrable.
- 1.6 “Intellectual Property Rights” means all present and future rights conferred by statute, common law or equity anywhere in the world in or in relation to copyright, trademarks, designs, patents, methodology, concepts, models, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable. These rights include:
- a. All rights in all applications to register these rights including all rights to claim Paris Convention priority;
- b. All renewals and extensions of these rights; and
- c. All rights in the nature of these rights, such as moral rights.
- 1.7 “Invoice” means a taxation invoice for Goods and/or Services supplied by the Seller to the Customer;
- 1.8 “Loss” means:
- a. Loss, including but not limited to direct loss, consequential loss, special loss, loss of anticipated profits and/or loss of business opportunity;
- b. Liability;
- c. Damage including but not limited to any damages or compensation and/or any damage to reputation; and/or
- d. Cost or expense including legal costs on a full indemnity basis;
- 1.9 “Party(ies)” means the parties to the Agreement including but not limited to the Seller and the Customer;
- 1.10 “Personal Property Securities Act” means the Personal Property Securities Act (Cth) 2009, as amended from time to time;
- 1.11 “Price” means the price payable for the Goods or Services (or both) specified in the Invoice;
- 1.12 “Purchase Order” means an order request for Goods from the Customer as set out in clause 4.1;
- 1.13 “Security Agreement”, “Commingled Goods”, “Financing Statement”, “Financing Change Statement”, “Personal Property”, “All Present and After Acquired Property”, “Purchase Money Security Interest”, “Registration” and “Security Interest” have the meanings given to them in the Personal Property Securities Act;
- 1.14 “Seller” means Green Choice Electrical Pty Ltd (ACN 617 162 642) its successors and assigns or any person acting on behalf of and with the authority of Green Choice Electrical Pty Ltd (ACN 617 162 642);
- 1.15 “Services” means all services requested and supplied by the Seller to the Customer, including any advice or recommendations (and where the context so permits shall include any Supply of Goods as defined below) and as specified in the Purchase Order(s), Invoice(s) or in any other written communications and may include installation where applicable to the Agreement;
- 1.16 “STCs” means the solar credits and/or rebates (if any) that form part of the Quotation.
- 1.17 “Supply” means supply of the Goods or Services (or both) by the Seller;
- 1.18 “Terms and Conditions” means these terms and conditions of the Seller’s Supply of Goods or Services (or both) to the Customer pursuant to the Agreement;
- 1.19 In interpreting these Terms and Conditions:
- a. The clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
- b. Any obligation on the part of two (2) or more persons or entities binds them jointly and severally;
- c. Words in the singular number include the plural and vice versa;
- d. Words importing a gender include any other gender;
- e. A reference to a person includes a partnership and a body, whether corporate or otherwise;
- f. Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
- g. A reference to a Schedule includes a reference to any part of that Schedule which is not physically annexed to these Terms and Conditions but which is incorporated by reference;
- h. Monetary references are references to Australian dollar currency (“$AUD”); and
- i. In the interpretation of these Terms and Condition, no rule of contract interpretation applies to the disadvantage of a Party on the basis that it put forward these Terms and Conditions or any part of them.
2. APPLICATION OF TERMS AND CONDITIONS
- 2.1 The Customer agrees to purchase the Goods from the Seller on these Terms and Conditions.
3. SELLER’S QUOTATION
- 3.1 On the Customer’s request, the Seller will provide a quotation (“Quotation”) to the Customer within a reasonable time.
- 3.2 The Quotation is valid for the time specified in the Quotation. If no time is specified, then it will be valid for 30 days from the date of the Quotation. Where specifications, drawings or other particulars are subsequently supplied by the Customer, the Seller may vary the Quotation.
4. ORDERING PROCEDURE
- 4.1 he Customer must provide a Purchase Order in writing to the Seller (unless this is waived by the Seller) and the Purchase Order must specify the following:
- a. Date of the Purchase Order;
- b. Quantity and description of the Goods to be supplied;
- c. Preferred delivery date;
- d. Delivery address;
- e. The Price as per the Quotation;
- f. Invoicing instructions (name of payee, address, ABN).
- 4.2 The details in clause 4.1 constitute the Customer’s Purchase Order. The Purchase Order must be signed by the Customer or its authorised persons.
5. SELLER’S ACCEPTANCE OF THE PURCHASE ORDER
- 5.1 The Seller will endeavour to notify the Customer in writing or orally of the following within three (3) business days from the date of receipt of the Purchase Order:
- a. Confirmation that the Seller has received the Purchase Order;
- b. Whether the Seller is able to supply the Goods and/or meet the Customer’s requirements; or
- c. Whether the Seller accepts the Purchase Order.
- 5.2 A Purchase Order cannot be revoked by the Customer without the prior written consent of the Seller.
6. ACCEPTANCE OF THE TERMS AND CONDITIONS
- 6.1 Any instructions received by the Seller from the Customer in relation to the following:
- a. Acceptance of the Quotation;
- b. Provision of the Purchase Order to the Seller;
- c. Supply of the Goods or Services (or both);
- d. The Customer and the Seller enters into a formal Agreement; or
- e. The Customer’s acceptance of the Goods supplied by the Seller, will constitute acceptance of these Terms and Conditions.
- 6.2 The Customer may terminate the Purchase Order within 10 days of its date by written notice to the Seller.
- 6.3 Where more than one Customer has entered into this Agreement, the Customers shall be jointly and severally liable for all payments of the Price.
- 6.4 The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any 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, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause 6.3.
7. PRICE AND PAYMENT
- 7.1 At the Seller’s sole discretion and subject to clause 7.2, the Price is either:
- a. As indicated on Invoices provided by the Seller to the Customer in respect of the Goods supplied; or
- b. As indicated in the Quotation (subject to clause 7.2) which shall be binding upon the Seller provided that the Customer accepts the Seller’s Quotation in writing within thirty (30) days from the date of the Quotation.
- 7.2 The Price does not include difficulties in accessing the installation address arising from site conditions or your absence, for which there is a rescheduling fee of not less than $200 plus GST and any costs notified to you in writing before installation commences for additional steps or equipment required for the safety of the installer.
- 7.3 The Customer must pay to the Seller as part payment of the Price:
- a. If the Customer is eligible, the value of the STCs as stated in the Quotation;
- b. If the Customer is ineligible, the higher of the value of the STCs as stated in the Quotation and the current value of the STCs.
- If the Customer retains the STCs, the Customer must pay the Seller the full cost of the system including any STC trading costs.
- If the Customer breaches the SC regulations, it indemnifies the Seller against all Loss.
- 7.4 The Customer agrees to pay the Price.
- 7.5 GST and other taxes and duties that may be applicable will be shown separately and are not included in the Price.
- 7.6 The Customer must pay for the Goods either prior to or on delivery unless otherwise agreed by the Seller.
- 7.7 The Seller reserves the right to withhold delivery of the Goods until the Customer has made full payment.
8. DELIVERY OF GOODS
- 8.1 Unless otherwise agreed between the Parties, the Seller will deliver the Goods to the Customer.
- 8.2 The Goods are estimated to be available within:
- a. The estimated timeframe specified in the Quotation or as agreed between the Parties; or
- b. If clause 8.2(i) is unreasonable or not possible, as mutually agreed between the Parties or within a reasonable time.
- 8.3 The Seller will notify the Customer as soon as possible if the Seller becomes aware of any delay in the delivery of Goods.
- 8.4 If the Seller delivers the Goods to the Customer’s nominated delivery address, the Customer must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery and in the event that the Customer is unable to take delivery of the Goods as arranged then the Seller will be entitled to charge a reasonable fee for re-delivery.
- 8.5 If applicable, the Seller may deliver the Goods by separate instalments and each separate instalment will incur delivery costs and must be invoiced and paid in accordance with the provisions in these Terms and Conditions.
- 8.6 The Seller’s failure to deliver up the Goods will not entitle either party to treat the Agreement as repudiated.
- 8.7 The Seller will not be liable for any loss or damage to the Customer resulting from late delivery of the Goods for any reason (including but not limited to changes to the Customer’s requirements or variations to the Agreement).
- 8.8 The Customer shall inspect all Goods upon delivery (or after installation if applicable) and shall, within seven (7) days from the time of delivery, give notice to the Seller of any shortfall in quantity or any defects in the Goods.
- 8.9 If the Customer requests the Seller to engage a third party (e.g. a courier) to deliver the Goods to the Customer, the Seller is acting as the Customer’s agent and the Customer is bound by the contract with the third party.
- 8.10 If the Customer requires the Seller to deliver the Goods, the risks in the Goods pass to the Customer at the instance when the Seller (or its agent) first moves the Goods in order to effect the delivery. The Customer indemnifies and shall keep indemnified (to the fullest extent permitted by law) the Seller and its agents and employees from and against all claims and demands in respect of any loss or damage whatsoever and whenever caused to any person whatsoever, whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property or to the Goods, delay, financial loss or otherwise arising from the transport of the Goods to the Customer (except if the loss or damage is caused by the Seller or its agent’s negligence).
9. STORAGE COSTS
- 9.1 The Customer must pay the Seller for any expenses (including but not limited to administrative, storage or delivery costs) incurred by the Seller as a result of any cancelled order for whatever reason.
- 9.2 The Seller reserves the right to make a reasonable charge for the storage costs for the Goods if delivery instructions are not provided by the Customer within 14 days of a request by the Seller for such instructions or if the Customer fails to take delivery of the Goods.
10. CUSTOMER’S WARRANTY
- 10.1 The Customer warrants that it will comply with all applicable legislation and regulations in operating or using the Goods, including without limitation any relevant equipment operating codes or software licence requirements, and that it will comply with all applicable equipment operating standards, good equipment operating practice and, the manufacturer’s manual.
- 10.2 The Customer will indemnify the Seller and hold it harmless in respect of all claims, costs, damages, expenses and losses which the Seller may incur or suffer arising out of any failure or default in respect of the Customer’s obligations under this clause 10 including without limitation any remedial or rectification action in respect of improper or unlawful installation of the Goods.
- 10.3 Where the Customer is a trustee:
- a. The Customer warrants that it has full power and authority for the benefit purposes and objects of the trust to make These terms and conditions on behalf of the trust and that it shall be bound by these terms and conditions both personally and as trustee; and
- b. The Customer confirms that the trustee shall be liable for the account and that in addition the assets of the trust shall be available to meet payment of the account.
- 10.4 Where the Supply includes installation of Goods, the Customer warrants that it has full authority to permit installation at the relevant premises and authorises the Seller or its appointees full and unrestricted access during reasonable hours to carry out the installation and for site inspections, documentation, delivery and service connections and agrees to assist the Seller in carrying out these tasks.
11. RISK, TITLE AND THE PERSONAL PROPERTY SECURITIES ACT
- 11.1 Goods supplied by the Seller to the Customer will be at the Customer’s risk upon:
- a. Collection by the Customer; or
- b. Delivery to the Customer’s custody, possession or control, whichever is the sooner.
- 11.2 It is the Customer’s responsibility to insure the Goods after the risks in the Goods passes to the Customer.
- 11.3 Ownership of the Goods remains with the Seller until all the amounts owing by the Customer to the Seller (including without limitation the Price and other debts owing to the Seller) have been paid in full. If payment is not received as and when due, the Seller reserves the right to enter the place where the Goods are without further notice and remove and repossess the Goods (even if they have been installed). The Seller is entitled to recover, in addition to any other damages, the costs of so doing.
- 11.4 Until all the amounts owing by the Customer have been paid in full the Customer may sell the Goods in the ordinary course of its business but only as trustee and agent of the Seller. The Customer must store the Goods in such a manner that they are readily distinguishable from other goods held by the Customer so they clearly show that they are the property of the Seller. The Customer must not represent to any third party that it is acting for the Seller, and the Seller will not be bound by any contracts with third parties to which the Customer is a party.
- 11.5 The Customer must hold the sale proceeds it receives from any sale of the Goods as trustee and agent for the Seller. All such sale proceeds must be placed in an ADI account separate from its own monies and the Customer must not allow any person to have control of, or grant a Security Interest over the proceeds or the accounts in which they are held. The Customer must make immediate payment to the Seller from the accounts in which the sale proceeds are held of all amounts which may be owing by the Customer to the Seller.
- 11.6 The Customer acknowledges that the Agreement and these Terms and Conditions constitute a Security Agreement and the Customer grants a Security Interest in favour of the Seller in all the Goods supplied by the Seller to the Customer from time to time. The Customer grants to the Seller a Purchase Money Security Interest. Further, the Customer grants to the Seller Security Interest in the Customer’s All Present and After Acquired Property to secure the as security for the Goods and performance of its obligations under this Agreement.
- 11.7 The Customer accepts, acknowledges and agrees that:
- a. The Seller can, without notice to the Customer, affect and maintain a Registration (in any manner that the Seller considers appropriate) of its Security Interest on the PPSR in relation to any Security Interest contemplated or constituted by the Agreement including but not limited to the Seller’s Goods, Services, contract rights or Intellectual Property; and
- b. Pursuant to section 275(6) of the PPSA, the Customer agrees the Seller is not required to disclose to an interested person information pertaining to the Seller’s Security Interest unless required to do so pursuant to the PPSA or at law generally.
- 11.8 The Customer will:
- a. Sign any documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) and/or assistance which the Seller may reasonably require to enable perfection of its Security Interest or Registration of a Financing Statement or Financing Change Statement on the PPSR;
- b. Not register a Financing Change Statement or make a demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Goods, including any Services, without the prior written consent of the Seller;
- c. Give the Seller not less than 14 days’ written notice of any proposed change in their name and/or any other changes in their details (including but not limited to, changes in their address, facsimile number, email address, trading name or business activities);
- d. Indemnify the Seller against any costs the Seller incurs in perfecting and maintaining its perfected Security Interest in the Goods or such other Personal Property under the PPSA and any costs the Seller may incur in the course of enforcing any of its rights under this Agreement, the PPSA or at law generally; and
- e. Procure from any persons considered by the Seller to be relevant to its security position, such agreement and waivers as the Seller may at any time reasonably require.
- 11.9 The Customer undertakes not to register, or permit to be registered, a Financing Statement or a Financing Change Statement in respect of a Security Interest contemplated or constituted by this Agreement in favour of a third party without the Seller’s prior written consent.
- 11.10 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a Security Interest arising in connection with this Agreement to which these terms and conditions apply, the Customer agrees that the following provisions of the PPSA will not apply to the enforcement of the Agreement:
- a. Section 95 (notice of removal of accession), to the extent that it requires the Seller to give a notice to the Customer;
- b. Section 96 (when a person with an interest in the whole may retain an accession);
- c. Subsection 121(4) (enforcement of liquid assets – notice to grantor);
- d. Section 125 (obligation to dispose of or retain collateral);
- e. Section 129 (disposal by purchase);
- f. Section 130 (notice of disposal of collateral), to the extent that it requires the Seller to give a notice to the Customer;
- g. Section 132(3)(d) (contents of statement of account after disposal);
- h. Section 132(4) (statement of account if no disposal);
- i. Section 135 (notice of retention of collateral);
- j. Section 142 (redemption of collateral); and
- k. Section 143 (reinstatement of security agreement).
- 11.11 Notices or documents required or permitted to be given to the Seller for the purposes of the PPSA must be given in accordance with the PPSA.
12. CUSTOMER’S WAIVER
- 12.1 The Customer warrants that it has not relied on any representation made by the Seller in any form (including but not limited to the Seller’s leaflets, catalogues, brochures, website) which has not been stated expressly in these Terms and Conditions or upon any descriptions, illustrations or specifications or any documentation provided by the Seller.
- 12.2 The Customer acknowledges and agrees that, to the extent the Seller has made any representation which is not otherwise expressly stated in these Terms and Conditions, the Agreement or in any other document, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
- 12.3 The Customer waives any right to rescind, terminate or cancel the Agreement with the Seller or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Seller and the Customer acknowledges that it is relying on its own skills and judgement when acquiring the Goods.
13. SELLER’S WARRANTY
- 13.1 Subject to the conditions of warranty set out in clause 13.1 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within six (6) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) replace or remedy the workmanship.
- 13.2 The conditions applicable to the warranty given by clause 13.1 are:
- a. The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- i. Failure on the part of the Customer to properly maintain any Goods; or
- ii. Failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or
- iii. Any use of any Goods otherwise than for any application specified on a quote or order form; or
- iv. The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
- v. Fair wear and tear, any accident or act of God.
- b. the warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
- c. in respect of all claims the Seller shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
- 13.3 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
- 13.4 Any condition or warranty which would otherwise be implied in the Agreement is hereby excluded to the full extent permitted by law.
- 13.5 Where legislation implies in the Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty will be deemed to be included in the Agreement. However, the liability of the Seller for any breach of such condition or warranty will be limited, at the option of the Seller, to one or more of the following:
- a. If the breach relates to Goods:
- i. The replacement of the Goods or the Supply of equivalent Goods;
- ii. The repair of such Goods;
- iii. The payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
- iv. The payment of the cost of having the Goods repaired; and
- b. if the breach relates to Services:
- i. the Supply of the Services again; or
- ii. the payment of the cost of having the Services supplied again.
- 13.6 The Customer must inspect the Goods on delivery and must within three (3) days of delivery (time being of the essence) notify in writing the Seller of any alleged defect, damage in the Goods or failure to comply with the description or quotation. The Customer must provide the Seller the opportunity to inspect the Goods (“Inspection”) within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer fails to give a written notice of the alleged defects or facilitate an Inspection for the Seller, the Goods will be presumed to be free from any defect or damage and the Seller is not liable to replace or repair the Goods.
- 13.7 The Seller may repair or replace any Goods or part of any Goods with second-hand replacement parts of the same or similar age, use and quality as those Goods or part of any Goods subject to such second¬hand parts being suitable for such purpose.
- 14.1 Goods will not be accepted for return other than in accordance with clause 13.3 above.
- 14.2 Goods must be returned in their original condition.
- 14.3 Restocking fee of 15% may apply to any Goods returned after 30 days of the delivery.
15. EXCLUSION OF LIABILITY
- 15.1 The Customer agrees that the Seller or its affiliates, agents and sub-contractors and each of their partners, principals, members, employees and other personnel will not be liable to the Customer for any actions, claims, or Loss in any way arising out of or relating to the Goods for an amount greater than the Price paid by the Customer to the Seller under this Agreement.
- 15.2 In no event will the Seller or its affiliates, agents or sub-contractors or any of their partners, principals, members, employees or other personnel be liable for special, incidental, indirect, consequential or punitive damages, costs expenses or losses of any kind, lost profits, lost revenue, loss of management time, opportunity costs, failure to realise anticipated savings, or lost or incorrect data.
- 15.3 This clause 15 will apply regardless of the form of action, damage, claim, liability, cost, expense or loss whether in contract, statute or tort (including without limitation to negligence) or otherwise. To the extent that this clause 15 refers to persons other than the Seller, the Seller holds the benefit of this clause 15 on trust for them.
- 15.4 The Customer acknowledges that the collection, storage and provision of data on local and remote servers presents inherent security risks and risk of loss. It agrees that it will not hold the Seller liable for any loss, theft or corruption of any data collected, stored or provided by the Seller or any damage that the Goods or Services may cause to any of the Customer’s existing infrastructure that does not directly result from the gross negligence of the Seller.
16. THE COMPETITION AND CONSUMER ACT 2010 (CTH) (“CCA”) AND THE FAIR TRADING ACT (“FTA”)
- 16.1 Nothing in the Agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
17. INTELLECTUAL PROPERTY
- 17.1 The Customer expressly agrees and acknowledges that:
- a. Any Intellectual Property in the Seller’s Goods and/or Services (whether unregistered, registered or registrable) is the property of the Seller; and
- b. Nothing in the Agreement is intended to provide the Customer with any interest in the Intellectual Property in the Seller’s Goods and/or Services.
- 17.2 The Customer agrees that it must not copy, alter, modify or in any other way interfere with (including but not limited to reverse engineering) the Goods or the Intellectual Property in the Goods. The Customer must not do anything that may infringe on the Seller’s Intellectual Property Rights.
18. CUSTOMER’S INDEMNITY
- 18.1 The Customer continually indemnifies the Seller, the Seller’s affiliates, agents or subcontractors, against any claim or proceeding that is made, threatened or commenced, and against any liability, Loss, damage or expense (including legal costs on a full indemnity basis) any of them incurs or suffers, as a direct or indirect result of any of the following:
- a. A breach of this agreement including any warranty;
- b. A wilful, unlawful or negligent act or omission by the Customer or an officer, employee, agent or subcontractor of the Customer; or
- c. Damage to or loss of any of the Seller’s property.
19. DEFAULT AND CONSEQUENCES
- 19.1 Neither Party shall take any action (including legal action) against the other Party for a default of the Agreement without first giving the defaulting Party written notice specifying the default and providing the defaulting Party with seven (7) days to rectify such.
- 19.2 Interest on overdue Invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of twelve per cent (12%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
- 19.3 If the Customer defaults in payment (including by way of dishonoured cheque) of any invoice when due, the Customer will indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs (on a solicitor and own customer basis) and the Seller’s debt recovery costs.
- 19.4 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the Supply of Goods or Services (or both) to the Customer and any of its other obligations under these Terms and Conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
- 19.5 Without prejudice to the Seller’s other remedies at law the Seller is entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
- a. Any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due; or
- b. The Customer 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
- c. A trustee in bankruptcy, receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
20. SECURITY AND CHARGE
- 20.1 Subject to clause 11 and the PPSA:
- a. where the Customer and/or the Guarantor (if any) is the owner of any real property, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said real property to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the Agreement. The Customer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) is entitled to lodge an absolute caveat, where appropriate and the caveat will be withdrawn once all payments and other monetary obligations payable hereunder have been met.
- b. should the Seller elect to proceed in any manner in accordance with this clause 20 and/or its sub-clauses, the Customer and/or the Guarantor will indemnify the Seller from and against all the Seller’s incurred costs and disbursements including legal costs on a solicitor and own customer basis.
- c. the Customer and/or the Guarantor (if any) agree to irrevocably nominate, constitute and appoint the Seller or the Seller’s 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
- 21.1 The Seller may cancel the Agreement or cancel delivery of the Goods, by giving written notice to the Customer. On giving such notice the Seller must repay to the Customer any sums paid in respect of the Price. The Seller will not be liable for any loss or damage whatever arising from such cancellation.
- 21.2 In the event that the Customer cancels delivery of the Goods, the Customer will be liable for any Goods and/or Services supplied and any loss incurred by the Seller (including but not limited to any loss of profits, manufacturing costs) up to the time of cancellation.
22. FORCE MAJEURE
- 22.1 If the Seller is delayed, hindered, or otherwise prevented from complying with its obligations under this Agreement by reason of events or circumstances beyond the reasonable control of the Seller including but not limited to acts of God, wars, riots, strikes, lock-outs, trade disputes or labour disturbances, breakdown of plant or machinery, accidents, storm, fire, floods, difficulties in obtaining materials, goods, transport or labour or any other circumstances affecting the Supply of Goods or Services (or both), the Seller is not liable to the Customer for any loss or damage which is or may be suffered by the Customer whether as a direct or indirect result of any such events or circumstances.
23. PRIVACY ACT 1988 (CTH)
- 23.1 The Customer and/or its Guarantor/s agrees for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Seller.
- 23.2 The Customer and/or its Guarantor/s agrees that the Seller may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
- a. To assess an application by Customer; and/or
- b. To notify other credit providers of a default by the Customer; and/or
- c. To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
- d. To assess the credit worthiness of Customer and/or Guarantor/s.
- 23.3 The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
- 23.4 The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time:
- a. Provision of Goods; and/or
- b. Marketing of Goods by the Seller, its agents or distributors in relation to the Goods; and/or
- c. Analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
- d. Processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
- e. Enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
- 23.5 The Seller 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. Allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
24. GENERAL TERMS
- 24.1 This Agreement and any documents referred to here, together with these Terms & Conditions, contain the whole of the Agreement between the parties and no understanding, arrangement or provision not expressly set forth in this Agreement or these General Terms & Conditions is binding upon the parties.
- 24.2 If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- 24.3 These Terms and Conditions and any Agreement to which they apply shall be governed by the laws of Western Australia and the Parties unconditionally submit to the jurisdiction of the courts of Western Australia.
- 24.4 The documents comprising the Agreement will be read in the following order of precedence:
- a. The Agreement;
- b. The Terms and Conditions;
- 24.5 Where any conflict occurs between the provisions contained in the Terms and Conditions, the Terms and Conditions will be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions will be severed from the Terms and Conditions without otherwise diminishing the enforceability of the remaining provisions of the Terms and Conditions.
- 24.6 In the event of any breach of the Agreement or any of these Terms and Conditions by the Seller the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price.
- 24.7 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Seller.
- 24.8 The Seller may license or sub-contract all or any part of its rights and obligations (including supplying of the Goods and/or Services) without the Customer’s consent.
- 24.9 The Seller reserves the right to review these Terms and Conditions at any time. If, following any such review, there is to be any change to these Terms and Conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change.
- 24.10 The failure by the Seller to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.
- 24.11 The Agreement and/or the Terms and Conditions are binding and can only be amended with the written consent of both Parties.
- 24.12 The Customer acknowledges the Seller does not make under this Agreement or these General Terms & Conditions or outside thereof any representations or warranties regarding goods and services or any matter (including but not limited to descriptions, illustrations and performance contained in the Seller’s catalogues, price lists or any other advertising or marketing materials) which is or might be relevant to the Customer buying or selling goods and services other than the representations or warranties expressed here.
- Version 5 July-2018