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 Contractor elects, whereby the Client acknowledges the extent and effect of the provision of security the Client provides to the Contractor in consideration of the provision of Materials or Works.

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

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

(b)if the Client is a partnership, it shall bind each partner jointly and severally; and

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

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

1.3“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.

1.4“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.

1.5“Contractor” means Soldon Pty Ltd T/F the Rocar Family Trust T/A Men Behaving Handy, its successors and assigns or any person acting on behalf of and with the authority of Soldon Pty Ltd T/F the Rocar Family Trust T/A Men Behaving Handy.

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

1.8“Intended Use” means a building product and the use thereof, for which the building product is intended to be, or is reasonably likely to be, associated with a building.

1.9“Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:

(a)the product is not, or will not be, safe; or

(b)does not, or will not, comply with the relevant regulatory provisions; or

(c)the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.

1.10“Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Contractor and the Client in accordance with clause 6 below.

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

1.12“Worksite” means the address nominated by the Client to which the Materials are to be supplied by the Contractor.

2.Acceptance

2.1The 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 Works.

2.2In 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.

2.3Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with the Contractor and it has been approved with a credit limit established for the account.

2.5In the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Contractor reserves the right to refuse delivery.

2.6Electronic 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 Representatives

3.1The Client acknowledges that the Contractor shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to the Contractor, that person shall have the full authority of the Client to order any Works, Materials and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to the Contractor for all additional costs incurred by the Contractor (including the Contractor’s profit margin) in providing any Works, Materials or variation/s requested thereto by the Client’s duly authorised representative.

4.Errors and Omissions

4.1The Client acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a)resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this Contract; and/or

(b)contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Works.

4.2In circumstances where the Client is required to place an order for Materials, 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 Materials (whether they are made to order Materials or not) ("Client Error"). The Client must pay for all Materials it orders from the Contractor notwithstanding that such Materials suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take delivery of such Materials.  The Contractor is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

5.Change in Control

5.1The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.

6.Price and Payment

6.1At the Contractor’s sole discretion, the Price shall be either:

(a)as indicated on invoices provided by the Contractor to the Client in respect of Works performed or upon placement if an order for the Materials; or

(b)the Contractor’s quoted Price (subject to clause 6.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.

6.2The Contractor reserves the right to change the Price:

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

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

(c)where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, obscured building/Worksite defects, incorrect measurements, plans and/or specifications provided by the Client, as a result of delays from third party suppliers, variations in quantity or volume of Materials to be supplied, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed, lack of required utilities, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, latent soil conditions, hard rock barriers below the surface, iron reinforcing rods in concrete or hidden pipes and wiring, etc.) which are only discovered on commencement of the Works; or

(d)in the event of increases to the Contractor in the cost of labour or Materials which are beyond the Contractor’s control.

6.3Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.4At the Contractor’s sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for Materials, in accordance with any quotation provided by the Contractor or as notified to the Client prior to the placement of an order for Materials.

6.5Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:

(a)on completion of the Works; or

(b)for approved credit account holders either  fourteen (14), thirty (30) or sixty (60) days following the date of the invoice; or

(c)within seven (7) days for domestic work; or

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

(e)failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Contractor.

6.6Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Contractor.

6.7The Contractor may in its discretion allocate any payment received from the Client towards any invoice that the Contractor determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Contractor may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Contractor, payment will be deemed to be allocated in such manner as preserves the maximum value of the Contractor’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.

6.8The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify the Contractor in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Contractor investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Contractor placing the Client’s account into default and subject to default interest in accordance with clause 19.1.

6.9Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other Contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

7.Provision of the Works

7.1Subject to clause 7.2 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any failure by the Client to:

(a)make a selection; or

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

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

7.3Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Works as agreed solely due to any action or inaction of the Client, then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

8.Dimensions, Plans and Specifications

8.1The Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Contractor accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

8.2All customary building industry tolerances shall apply to the dimensions and measurements of the Works unless the Contractor and the Client agree otherwise in writing.

8.3Where the Client is to supply the Contractor with any design specifications (including, but not limited to CAD drawings) the Client shall be responsible for providing accurate data. The Contractor shall not be liable whatsoever for any errors in the Works that are caused by incorrect or inaccurate data being supplied by the Client.

8.4In the event the Client gives information relating to measurements and quantities of Materials required in completing the Works, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or the Contractor places an order based on these measurements and quantities. The Contractor accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.

9.Risk

9.1If the Contractor retains ownership of the Materials under clause 14 then:

(a)where the Contractor is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. The cost of delivery will be payable by the Client in accordance with the quotation provided by the Contractor to the Client, or as otherwise notified to the Client prior to the placement of an order for the Materials. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by the Contractor or the Contractor’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address); or

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

9.2Notwithstanding the provisions of clause 9.1 if the Client specifically requests the Contractor to leave Materials outside the Contractor’s premises for collection or to deliver the Materials to an unattended location then such Materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

9.3The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any plumbing connections (including, but not limited to, meter boxes, pipes, couplings and valves) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe plumbing or dangerous access to crawl spaces or the roof) that the Contractor, or employees of the Contractor, reasonably form the opinion that the Client’s premises is not safe for the installation of Materials to proceed then the Contractor shall be entitled to delay installation of the Materials (in accordance with the provisions of clause 7.2 above) until the Contractor is satisfied that it is safe for the installation to proceed.

9.4The Client acknowledges that Materials supplied may:

(a)fade or change colour over time;

(b)expand, contract or distort as a result of exposure to heat, cold, weather;

(c)mark or stain if exposed to certain substances; and

(d)be damaged or disfigured by impact or scratching.

9.5Timber is a:

(a)natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst the Contractor will make every effort to match sales samples to the finished Materials the Contractor accepts no liability whatsoever where such samples differ to the finished Materials supplied; and

(b)hydroscopic material subject to expansion and contraction; therefore the Contractor will accept no responsibility for gaps that may appear during prolonged dry periods.

9.6The Client acknowledges that variations of colour, shade and grain are inherent in all kiln fired products and natural stone. While every effort will be taken by the Contractor to match colour, shade or grain of product, the Contractor shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied.

9.7The Contractor gives no guarantee (expressed or implied) against crazing, cracking, chipping or scratching that may occur that is beyond the Contractor’s control due to the nature of the product at the time of installation, therefore it is recommended that the Client allows for extra product for such breakages.

9.8The Client acknowledges and agrees that where the Contractor has performed temporary repairs that:

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

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

9.9The Contractor shall not be liable for:

(a)inferior existing paintwork where the Contractor’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish;

(b)the quality of the works if the Client does not follow the Contractor’s recommendations as to the number of coats of paint required to obtain the final finish if the Client chooses to accept a reduced Price based on fewer coats of paint; and

(c)any loss or damage to the Works (including, but not limited to, painted surfaces) that is caused by any other tradesmen.

9.10The Client accepts and acknowledges that the Contractor accepts no liability for any subsequent loss or damage (including, but not limited to, internal water damage) to the Client’s property which may occur during the cleaning process where such loss or damage is due to pre-existing faults or leaks.

10.Client’s Responsibilities

10.1It is the intention of the Contractor and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the Works to be undertaken (where in the Contractor’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.

10.2The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the Works and agrees that the Contractor shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.

11.Worksite Access and Condition

11.1The Contractor is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s.  All rubbish generated by the Contractor will be placed in a designated area appointed by the Client but the responsibility of removal of same is the Client or the Client’s agent, unless otherwise agreed.

11.2It is the intention of the Contractor and agreed by the Client that:

(a)the Client shall ensure that the Contractor has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). The Contractor shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor; and

(b)it is the Client’s responsibility to provide the Contractor, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities; and

(c)the Client shall contact adjoining neighbours and gain their permission to remove any walls or fences on boundaries and unless otherwise agreed, it shall be the Client’s responsibility to organise either temporary fencing and/or security guards to secure the Worksite during the performance of the Works by the Contractor and shall be liable for all costs associated in taking all reasonable precautions to protect against destruction or damage by way of vandalism or theft. Failure to comply with this clause 11.2(c) in the event that the Worksite is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Client.

11.3The Client agrees to be present at the Worksite when and as reasonably requested by the Contractor and its employees, contractors and/or agents.

11.4Worksite Inductions

(a)in the event the Client requires an employee or sub-contractor of the Contractor to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay the Contractor’s standard (and/or overtime, if applicable) hourly labour rate; or

(b)where the Contractor is in control of the Worksite, the Client and/or the Client’s third-party contractors must initially carry out the Contractor’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by the Contractor.

12.Underground Locations

12.1Prior to the Contractor commencing any work the Client must advise the Contractor of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.

12.2Whilst the Contractor will take all care to avoid damage to any underground services the Client agrees to indemnify the Contractor in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 12.1.

13.Compliance with Laws

13.1The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any occupational health and safety laws (OHS) relating or any other relevant safety standards or legislation pertaining to the Works.

13.2Both parties acknowledge and agree:

(a)to comply with the National Construction Code of Australia (NCC) and the Home Building Contracts Act 1991, in respect of all workmanship and building products to be supplied during the course of the Works; and

(b)that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.

13.3Where the Client has supplied products for the Contractor to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in the Contractor’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with state and/or territory regulations, then the Contractor shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.

13.4The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

14.Title

14.1The Contractor and the Client agree that ownership of the Materials shall not pass until:

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

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

14.2Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

14.3It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 14.1:

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

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

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

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

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

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

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

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

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

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

15.1In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS A.

15.2Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials and/or collateral (account) – being a monetary obligation of the Client to the Contractor for Works – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.

15.3The Client undertakes to:

(a)promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to:

(i)register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii)register any other document required to be registered by the PPSA; or

(iii)correct a defect in a statement referred to in clause 15.3(a)(i) or 15.3(a)(ii);

(b)indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;

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

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

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

15.4The Contractor and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

15.5The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

15.6The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

15.7Unless otherwise agreed to in writing by the Contractor, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.

15.8The Client shall unconditionally ratify any actions taken by the Contractor under clauses 15.3 to 15.5.

15.9Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

16.Security and Charge

16.1In consideration of the Contractor agreeing to supply the Materials and/or provide its Works and as acknowledged by the Contractor in accordance with any Acknowledgment Document the Client grants the Contractor a security interest by way of a floating charge (registerable by the Contractor 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 Materials and/or Works under this Contract and/or permit the Contractor to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).  

16.2The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.

16.3In the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 14.1,15.2 and 16.1  as applicable, is deemed insufficient by the Contractor to secure the repayment of monies owed by the Client to the Contractor, the Client hereby grants the Contractor 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.

17.Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)

17.1The Client must inspect all Materials on delivery (or the Works on completion) and must within forty-eight (48) hours of delivery notify the Contractor in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to inspect the Materials or to review the Works provided.

17.2Under 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).

17.3The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

17.4Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.

17.5If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.

17.6If the Contractor is required to replace any Materials under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Client has paid for the Materials.

17.7If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.

17.8If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Materials is:

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

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

(c)otherwise negated absolutely.

17.9Subject to this clause 17, returns will only be accepted provided that:

(a)the Client has complied with the provisions of clause 17.1; and

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

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

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

17.10Notwithstanding clauses 17.1 to 17.9 but subject to the CCA, the Contractor shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a)the Client failing to properly maintain or store any Materials;

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

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

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

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

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

17.11Notwithstanding anything contained in this clause if the Contractor is required by a law to accept a return then the Contractor will only accept a return on the conditions imposed by that law.

17.12Subject to clause 17.1, customised, or non-stocklist items or Materials made or ordered to the Client’s specifications are not acceptable for credit or return.

18.Intellectual Property

18.1Where the Contractor has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Contractor, and shall only be used by the Client at the Contractor’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Contractor.

18.2The Client warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.

18.3The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings,

19.Default and Consequences of Default

19.1Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

19.2If the Client owes the Contractor any money, the Client shall indemnify the Contractor 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 Contractor’s rights under these terms and conditions, internal administration fees, the Contractor’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.

19.3Further to any other rights or remedies the Contractor may have under this Contract, if a Client has made payment to the Contractor, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 19 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.

19.4Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:

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

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

(c)the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d)a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

20.Cancellation

20.1Without 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 Materials and/or Works 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.

20.2If the Contractor, due to reasons beyond the Contractor’s reasonable control, is unable to deliver any Materials and/or Works to the Client, the Contractor may cancel any Contract to which these terms and conditions apply or cancel delivery of Materials and/or Works at any time before the Materials and/or Works are delivered by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any money paid by the Client for the Materials and/or Works. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.

20.3The Client may cancel delivery of the Materials and/or Works by written notice served within forty-eight (48) hours of placement of the order. If the Client cancels delivery in accordance with this clause 20.3, the Client will not be liable for the payment of any costs of the Contractor, except where a deposit is payable in accordance with clause 6.4. Failure by the Client to otherwise accept delivery of the Materials and/or Works shall place the Client in breach of this Contract.

20.4Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

21.Privacy Policy

21.1All emails, documents, images or other recorded information held or used by the Contractor is Personal Information, as defined and referred to in clause 21.3, and therefore considered Confidential Information. The Contractor acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to thePrivacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Contractor acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Contractor that may result in serious harm to the Client, the Contractor will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

21.2Notwithstanding clause 21.1, privacy limitations will extend to the Contractor in respect of Cookies where the Client utilises the Contractor’s website to make enquiries.The Contractor agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

(a)IP address, browser, email client type and other similar details;

(b)tracking website usage and traffic; and

(c)reports are available to the Contractor when the Contractor sends an email to the Client, so the Contractor may collect and review that information (“collectively Personal Information”)

If the Client consents to the Contractor’s use of Cookies on the Contractor’s website and later wishes to withdraw that consent, the Client may manage and control the Contractor’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

21.3The Client agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by the Contractor.

21.4The Client agrees that the Contractor may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

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

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

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

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

21.5The Client consents to the Contractor being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.

21.6The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by):

(a)the provision of Works; and/or

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

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

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

21.7The Contractor may give information about the Client to a CRB for the following purposes:

(a)to obtain a consumer credit report;

(b)allow the CRB to create or maintain a credit information file about the Client including credit history.

21.8The information given to the CRB may include:

(a)Personal Information as outlined in 21.3 above;

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

(c)whether the credit provider is a licensee;

(d)type of consumer credit;

(e)details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);

(f)advice of consumer credit defaults (provided the Contractor 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 Contractor has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);

(g)information that, in the opinion of the Contractor, the Client has committed a serious credit infringement;

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

21.9The Client shall have the right to request (by e-mail) from the Contractor:

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

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

21.10The Contractor will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

21.11 The Client can make a privacy complaint by contacting the Contractor via e-mail. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

22.Service of Notices

22.1Any written notice given under this Contract shall be deemed to have been given and received:

(a)by handing the notice to the other party, in person;

(b)by leaving it at the address of the other party as stated in this Contract;

(c)by sending it by registered post to the address of the other party as stated in this Contract;

(d)if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;

(e)if sent by email to the other party’s last known email address.

22.2Any 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.

23.Trusts

23.1If 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 Contractor may have notice of the Trust, the Client covenants with the Contractor as follows:

(a)the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, 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 Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

(i)the removal, replacement or retirement of the Client as trustee of the Trust;

(ii)any alteration to or variation of the terms of the Trust;

(iii)any advancement or distribution of capital of the Trust; or

(iv)any resettlement of the trust fund or trust property.

24.Building and Construction Industry (Security of Payment) Act 2021

24.1At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry (Security of Payment) Act 2021may apply.

24.2Nothing in this Contract is intended to have the effect of contracting out of any provisions of the Building and Construction Industry (Security of Payment) Act 2021of Western Australia, except to the extent permitted by the Act where applicable.

25.General

25.1Any 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.

25.2The 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.

25.3These 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).

25.4The Contractor 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.

25.5The Client cannot licence or assign without the written approval of the Contractor.

25.6The Contractor may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.

25.7The Client agrees that the Contractor may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Works to the Client.

25.8Neither 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 Contractor, once the parties agree that the Force Majeure event has ceased.

25.9Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

25.10The 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.

25.11If 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.