1.1 "Contract" means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 "Manufacturer" means Kleencut Solutions Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Kleencut Solutions Pty Ltd.
1.3 "Client" means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Manufacturer to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 "Goods" means all Goods or Services supplied by the Manufacturer to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 "Intended Use" means an associated 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.
1.6 "Non-Conforming Building Product" means any associated 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.
1.7 "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.
1.8 "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 Manufacturer’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.
1.9 "Price" means the Price payable (plus any GST where applicable) for the Goods as agreed between the Manufacturer and the Client in accordance with clause 5 below.
1.10 "GST" means Goods and Services Tax (GST) as defined within the "A New Tax System (Goods and Services Tax) Act 1999" (Cth).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.5 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with the Manufacturer and it has been approved with a credit limit established for the account.
2.6 In the event that the supply of Goods requested exceeds the Clients credit limit and/or the account exceeds the payment terms, the Manufacturer reserves the right to refuse delivery.
2.7 The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, the Manufacturer reserves the right to vary the Price with alternative Goods as per clause 5.
2.8 Where the Manufacturer gives any advice, recommendation, information, assistance or service provided by the Manufacturer in relation to Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on the Manufacturer’s own knowledge and experience and shall be accepted without liability on the part of the Manufacturer. Where such advice or recommendations are not acted upon then the Manufacturer shall require the Client or their agent to authorise commencement of the Services in writing. The Manufacturer shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
3.1 The Client acknowledges and accepts that the Manufacturer 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 Manufacturer 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 Manufacturer in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Manufacturer; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4.1 The Client shall give the Manufacturer 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 Manufacturer as a result of the Client’s failure to comply with this clause.
5.1 At the Manufacturer’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Manufacturer to the Client; or
(b) the Manufacturer’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 The Manufacturer reserves the right to change the Price if a variation to the Manufacturer’s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances such as a lack of or restricted access to the site, or as a result of increases to the Manufacturer in the cost of materials and labour) will be charged for on the basis of the Manufacturer’s quotation and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by the Manufacturer within ten (10) working days. Failure to do so will entitle the Manufacturer to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 At the Manufacturer’s sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Manufacturer, which may be:
(a) before delivery of the Goods;
(b) by way of instalments/progress payments in accordance with the Manufacturer’s payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(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 Manufacturer.
5.5 Payment may be made by cash, 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 Manufacturer.
5.6 The Manufacturer may in its discretion allocate any payment received from the Client towards any invoice that the Manufacturer determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Manufacturer may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Manufacturer, payment will be deemed to be allocated in such manner as preserves the maximum value of the Manufacturer’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Manufacturer nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Manufacturer an amount equal to any GST the Manufacturer must pay for any supply by the Manufacturer under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6.1 Delivery ("Delivery") of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at the Manufacturer’s address; or
(b) the Manufacturer (or the Manufacturer’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.2 At the Manufacturer’s sole discretion, the cost of delivery is included in the Price.
6.3 The Manufacturer may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 Any time specified by the Manufacturer for delivery of the Goods is an estimate only and the Manufacturer 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 Goods to be delivered at the time and place as was arranged between both parties. In the event that the Manufacturer is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then the Manufacturer shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Manufacturer is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Manufacturer is sufficient evidence of the Manufacturer’s rights to receive the insurance proceeds without the need for any person dealing with the Manufacturer to make further enquiries.
7.3 If the Client requests the Manufacturer to leave Goods outside the Manufacturer’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
7.4 Where the Manufacturer is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Manufacturer shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
7.5 The Client acknowledges that:
(a) stainless steel is a textured material and can be of a porous nature. The Client accepts that products made from this material can rust and mark easily. The Client accepts that care should be taken to maintain the finish of and longevity of stainless steel products; and
(b) where an anodised surface finish has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in aluminium alloys available and manufacturing standards and tolerances shall not deemed to be a defect in the Goods; and
(c) the Manufacturer is only responsible for parts that are replaced by the Manufacturer and that in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify the Manufacturer against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
(d) Goods supplied may:
(i) exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Manufacturer will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and
(ii) expand, contract or distort as a result of exposure to heat, cold, weather; and
(iii) mark or stain if exposed to certain substances; and
(iv) be damaged or disfigured by impact or scratching.
7.6 The Client acknowledges and agrees that routine cleaning will prolong the original appearance of the stainless steel and provides maximum corrosion resistance when it is cleaned regularly. The Client further agrees that crevice corrosion (tea staining) may occur if dirt, grime and surface stains containing corrosive substances are left on the stainless steel surface. The frequency of cleaning required will depend on aesthetic requirements, severity of the environment, suitability of the stainless steel grade and surface finish for that particular environment, the presence or lack of heavy rains to clean the surface, and the design of the stainless steel.
8.1 The Manufacturer 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 Manufacturer accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8.2 In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or the Manufacturer places an order based on these measurements and quantities. The Manufacturer accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
9.1 The Client acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in the Manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by the Manufacturer;
(b) while the Manufacturer may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that the Manufacturer has given these in good faith, and are estimates.
9.2 The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
9.3 The Manufacturer reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases the Manufacturer will notify the Client in advance of any such substitution.
10.1 The Client shall ensure that the Manufacturer has clear and free access to the work site at all times to enable them to undertake the Services. The Manufacturer shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Manufacturer.
11.1 The Client and the Manufacturer shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any work health and safety laws (WHS) relating or any other relevant safety standards or legislation pertaining to the Services.
11.2 Both parties acknowledge and agree:
(a) to comply with the National Construction Code of Australia (NCC) and comply with section74AA (products associated with building works and/or the intended use) and section 74AE (Chain of Responsibility) of the QBCC Act 1991, in respect of all workmanship and building products to be supplied during the course of the Services; and
(b) that Services will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
11.3 Where the Client has supplied products for the Manufacturer to complete the Services, the Client acknowledges that it accepts responsibility for the suitability of purpose and are for their Intended Use and any faults inherent in those products. However, if in the Manufacturer’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 Manufacturer shall be entitled, without prejudice, to halt the Services 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 5.2.
11.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
11.5 The Manufacturer shall comply with the terms and conditions of all such consents and approvals in so far as such consents and approvals relate to the carrying out of the Services.
12.1 The Manufacturer and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Manufacturer all amounts owing to the Manufacturer; and
(b) the Client has met all of its other obligations to the Manufacturer.
12.2 Receipt by the Manufacturer of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Goods and must return the Goods to the Manufacturer on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Manufacturer and must pay to the Manufacturer the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Manufacturer and must pay or deliver the proceeds to the Manufacturer on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Manufacturer and must sell, dispose of or return the resulting product to the Manufacturer as it so directs.
(e) the Client irrevocably authorises the Manufacturer to enter any premises where the Manufacturer believes the Goods are kept and recover possession of the Goods.
(f) the Manufacturer may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Manufacturer.
(h) the Manufacturer may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to the Manufacturer for Services – that have previously been supplied and that will be supplied in the future by the Manufacturer to the Client.
13.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Manufacturer may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Manufacturer for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Manufacturer;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Manufacturer;
(e) immediately advise the Manufacturer of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
13.4 The Manufacturer and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by the Manufacturer, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Client must unconditionally ratify any actions taken by the Manufacturer under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14.1 In consideration of the Manufacturer agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Client indemnifies the Manufacturer from and against all the Manufacturer’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Manufacturer’s rights under this clause.
14.3 The Client irrevocably appoints the Manufacturer and each director of the Manufacturer as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify the Manufacturer in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Manufacturer to inspect the Goods.
15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
15.3 The Manufacturer acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Manufacturer makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Manufacturer’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Client is a consumer within the meaning of the CCA, the Manufacturer’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If the Manufacturer is required to replace the Goods under this clause or the CCA, but is unable to do so, the Manufacturer may refund any money the Client has paid for the Goods.
15.7 If the Client is not a consumer within the meaning of the CCA, the Manufacturer’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Manufacturer at the Manufacturer’s sole discretion;
(b) limited to any warranty to which the Manufacturer is entitled, if the Manufacturer did not manufacture the Goods;
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(b) the Manufacturer has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, the Manufacturer shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by the Manufacturer;
(e) fair wear and tear, any accident, or act of God.
15.10 The Manufacturer may in its absolute discretion accept non-defective Goods for return in which case the Manufacturer may require the Client to pay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
15.11 Notwithstanding anything contained in this clause if the Manufacturer is required by a law to accept a return then the Manufacturer will only accept a return on the conditions imposed by that law.
16.1 Where the Manufacturer has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Manufacturer. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Manufacturer.
16.2 The Client warrants that all designs, specifications or instructions given to the Manufacturer will not cause the Manufacturer to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Manufacturer against any action taken by a third party against the Manufacturer in respect of any such infringement.
16.3 The Client agrees that the Manufacturer may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Manufacturer has created for the Client.
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Manufacturer’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Client owes the Manufacturer any money the Client shall indemnify the Manufacturer from and against all costs and disbursements incurred by the Manufacturer in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Manufacturer’s contract default fee, and bank dishonour fees).
17.3 Further to any other rights or remedies the Manufacturer may have under this contract, if a Client has made payment to the Manufacturer, 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 Manufacturer under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
17.4 Without prejudice to the Manufacturer’s other remedies at law the Manufacturer shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Manufacturer shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Manufacturer becomes overdue, or in the Manufacturer’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 Manufacturer;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
18.1 Without prejudice to any other remedies the Manufacturer may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Manufacturer may suspend or terminate the supply of Goods to the Client. The Manufacturer will not be liable to the Client for any loss or damage the Client suffers because the Manufacturer has exercised its rights under this clause.
18.2 The Manufacturer may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Manufacturer shall repay to the Client any money paid by the Client for the Goods. The Manufacturer shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Manufacturer as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19.1 All emails, documents, images or other recorded information held or used by the Manufacturer is Personal Information, as defined and referred to in clause 19.3, and therefore considered Confidential Information. The Manufacturer acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 ("the Act") including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area ("EEA"), under the EU Data Privacy Laws (including the General Data Protection Regulation "GDPR") (collectively, "EU Data Privacy Laws"). The Manufacturer acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Manufacturer that may result in serious harm to the Client, the Manufacturer will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
19.2 Notwithstanding clause 19.1, privacy limitations will extend to the Manufacturer in respect of Cookies where the Client utilises the Manufacturer’s website to make enquiries. The Manufacturer 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 Manufacturer when the Manufacturer sends an email to the Client, so the Manufacturer may collect and review that information ("collectively Personal Information")
If the Client consents to the Manufacturer’s use of Cookies on the Manufacturer’s website and later wishes to withdraw that consent, the Client may manage and control the Manufacturer’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
19.3 The Client agrees that the Manufacturer may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
19.4 The Client consents to the Manufacturer being given a consumer credit report to collect overdue payment on commercial credit.
19.5 The Client agrees that personal credit information provided may be used and retained by the Manufacturer for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
19.6 The Manufacturer may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
19.7 The information given to the CRB may include:
(a) Personal Information as outlined in 19.3 above;
(b) name of the credit provider and that the Manufacturer is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Manufacturer 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 Manufacturer, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
19.8 The Client shall have the right to request (by e-mail) from the Manufacturer:
(a) a copy of the Personal Information about the Client retained by the Manufacturer and the right to request that the Manufacturer correct any incorrect Personal Information; and
(b) that the Manufacturer does not disclose any Personal Information about the Client for the purpose of direct marketing.
19.9 The Manufacturer will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
19.10 The Client can make a privacy complaint by contacting the Manufacturer via e-mail. The Manufacturer will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
20.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
21.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust ("Trust") then whether or not the Manufacturer may have notice of the Trust, the Client covenants with the Manufacturer as follows:
(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) the Client will not without consent in writing of the Manufacturer (the Manufacturer will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
22.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which the Manufacturer has its principal place of business, and are subject to the jurisdiction of the Wynnum Courts in Queensland.
22.3 Subject to clause 15 the Manufacturer shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Manufacturer of these terms and conditions (alternatively the Manufacturer’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4 The Manufacturer may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
22.5 The Client cannot licence or assign without the written approval of the Manufacturer.
22.6 The Manufacturer may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Manufacturer’s sub-contractors without the authority of the Manufacturer.
22.7 The Client agrees that the Manufacturer 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 Manufacturer to provide Goods to the Client.
22.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
