Group Technologies Australasia Pty Ltd ACN 072 549 010, – Terms and Conditions of Trade
1. Definitions
1.1 “Company” means Group Technologies Australasia Pty Ltd ACN 072 549 010, its successors and assigns or any person acting on behalf of and with the authority of Group Technologies Australasia Pty Ltd.
1.2 “Customer” means the Customer, its successors and assigns or any person acting on behalf of and with the authority of the Customer as described on any application, quotation, work authorisation or other form as provided by the Company to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be jointly and severally liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” means all Goods supplied by the Company to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, or any other forms as provided by the Company to the Customer.
1.5 “PPSA” means the Personal Property and Securities Act 2009 (Cth) as amended from time to time.
1.6 “Services” means all Services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.7 “Price” means the price payable for the Goods and/or Services as agreed between the Company and the Customer in accordance with clause 3 of this contract.
1.9 The following words have the same meaning as the definitions in the PPSA: collateral, secured party, security interest, account, accession, personal property, possession, proceeds, secured party, security interest.
2. Acceptance
2.1 The Customer is taken to have accepted and is immediately bound by these terms and conditions if the Customer executes the Credit Account Application and/or provides the Company with any instructions for the supply of Goods and/or Services and/or the Customer’s acceptance of Goods and/or Services supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Company.
2.4 The Customer shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Company as a result of the Customer’s failure to comply with this clause.
2.5 This agreement and these terms and conditions bind the Customer both personally and as trustee of any trust of which the Customer is trustee.
2.6 Goods and/or Services are supplied by the Company only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3. Price And Payment
3.1 At the Company’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Company to the Customer in respect of Goods and/or Services supplied; or
(b) the Company’s quoted Price (subject to clause 3.2) which shall be binding upon the Company provided that the Customer shall accept the Company’s quotation in writing within thirty (30) days; or
(c) the price specified in the Company’s pricelist.
3.2 The Company reserves the right to change the Price in the event of:
(a) a variation to the Company’s quotation;
(b) a variation in currency exchange rates;
(c) a variation in the cost of the materials and/or labour costs;
(d) a variation in respect of unforeseen circumstances.
3.3 If the Customer requires work to be performed outside of the Company’s normal trading hours then the Price shall be increased to include the Company’s usual overtime rate.
3.4 In its sole discretion, the Company may charge for the cost of delivering any Goods to the Customer.
3.5 At the Company’s sole discretion a deposit may be required and once paid by the Customer, the deposit will be non-refundable.
3.6 The Company may submit a detailed payment claim at intervals of not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed.
3.7 At the Company’s sole discretion:
(a) payment shall be due before delivery of the Goods and/or Services; or
(b) payment shall be due on delivery of the Goods and/or Services; or
(c) payment for approved Customers shall be made by instalments in accordance with the Company’s payment schedule.
3.8 Time for payment for the Goods and/or Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due 30 days following the date of the invoice and/or statement.
3.9 Payment will be made by cash, or by bank cheque, or by direct credit, or by credit card (plus a surcharge of up to two percent (2%) of the Price of three and one half percent (3%) of the Price for American Express), or by any other method as agreed to between the Customer and the Company. If a Customer requests to pay via cheque, prior approval from the Company is required.
3.10 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Goods and/or Services
4.1 At the Company’s sole discretion delivery of the Goods and/or Services shall take place when the Customer takes possession of the Goods and/or Services at the Customer’s nominated address (in the event that the Goods and/or Services are delivered by the Company or the Company’s nominated carrier).
4.2 Goods and/or Services are to be picked up at the address which is provided to the Customer by the Company and/or as directed by the Company or as the parties my otherwise agree.
4.3 At the Company’s sole discretion the costs of delivery are exclusive of the Price and all costs incurred by the Company in the delivery of any goods and/or service whatsoever, will be charged to the Customer in addition to the Price.
4.4 The Customer shall make all arrangements necessary to take delivery of the Goods and/or Services whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods and/or Services as arranged then the Company shall be entitled to charge a reasonable fee for redelivery.
4.5 Delivery of the Goods and/or Services to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
4.6 The Company may deliver the Goods and/or Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.7 The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
4.8 Any time and/or date specified, verbally or in writing or otherwise, by the Company to the Customer as to the time and/or date of delivery of any Goods and/or Service will be deemed to be an estimate only.
4.9 The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the Services (or any of them) promptly or at all where due to circumstances beyond the control of the Company.
5. Risk, use and security
5.1 If the Company retains ownership of the Goods and/or Services nonetheless, all risk for the Goods and/or Services passes to the Customer on delivery.
5.2 Where a third party has supplied materials for the Company to complete the Goods and/or Services, the Customer acknowledges that the Company accepts no liability for the suitability of purpose, quality and any faults inherent in the materials. The Company shall not be responsible for any defects in the works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of the materials supplied.
5.3 If any of the Goods and/or Services are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods and/or Services. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
5.4 Where the Customer expressly requests the Company to leave Goods and/or Services outside the Company’s premises for collection or to deliver the Goods and/or Services to an unattended location then such Goods and/or Services shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods and/or Services are insured adequately or at all.
5.5 The Customer shall indemnify the Company from and against all costs incurred and damages caused as a result of the Company following the Customer’s instructions.
6. Customer’s Responsibilities
6.1 It is the intention of the Company and agreed by the Customer that:
(a) the Customer shall obtain and pay for all approvals, consents or permits required for the Goods and /or Services prior to commencement of the Goods and/or Services by the Company; and
(b) the Customer shall provide the Company with clear and free access to the worksite, including electricity and water services, to enable the Company to complete the delivery of the Goods and/or Services, and any Services required at the worksite. The Company shall not be liable for any loss or damage to the worksite whatsoever unless due to the negligence of the Company; and
(c) Instructions on the placement, installation and /or supervision for the Goods and/or Services shall be the sole responsibility of the Customer, the Company shall not be liable for errors or omissions arising from the Customer failing to comply with this clause.
7. Title
7.1 The Company and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Company all amounts owing for the particular Goods and/or Services; and
(b) the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.
7.2 Receipt by the Company 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 and until then the Company’s ownership or rights in respect of the Goods and/or Services shall continue.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 7.1 then the Customer is only a bailee of the Goods and must return the Goods to the Company on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Company and must pay to the Company the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods and/or Services other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods and/or Services then the Customer must hold the proceeds of any such act on trust for the Company and must pay or deliver the proceeds to the Company on demand;
(d) the Customer should not convert or process the Goods and/or Services or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Company and must sell, dispose of or return the resulting product to the Company as it so directs;
(e) the Customer shall not charge or grant an encumbrance over the Goods and/or Services nor grant nor otherwise give away any interest in the Goods and/or Services while they remain the property of the Company;
(f) the Company may recover possession of any Goods and/or Services in transit whether or not delivery has occurred;
(g) until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods and/or Services or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease;
(h) if the Customer fails to return the Goods and/or Services to the Company then the Customer irrevocably authorises the Company or the Company’s agent to enter upon and into land and premises owned, occupied and/or used by the Customer, or any premises as the invitee of the Customer, where the Goods and/or Services are situated and take possession of the Goods and/or Services; and
(i) the Company may commence proceedings to recover the Price of the Goods and/or Services sold notwithstanding that ownership of the Goods has not passed to the Customer.
8. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
8.1 The Customer shall inspect the Goods and/or Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Company an opportunity to inspect the Goods and/or Services within a reasonable time following delivery if the Customer believes the Goods and/or Services are defective in any way. If the Customer shall fail to comply with these provisions the Goods and/or Services shall be presumed to be free from any defect or damage. For defective Goods and/or Services, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods and/or Services or repairing the Goods and/or Services except where the Customer has acquired Goods and/or Services as a consumer within the meaning of the CCA or the FTA of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods and/or Services, or repair of the Goods and/or Services, or replacement of the Goods and/or Services.
8.2 Goods and/or Services which are not defective may be accepted as returns by the Company at the Company’s discretion and the Customer agrees to pay a re-stocking fee of up to 20% which will be charged at the Company’s discretion.
8.3 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).
8.4 The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
8.5 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods and/or Services. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law.
8.6 If the Customer is a consumer within the meaning of the CCA, the Company’s liability is limited to the extent permitted by section 64A.
8.7 If the Company is required to replace the Goods and/or Services under this clause or the CCA, but is unable to do so, the Company may refund any money the Customer has paid for the Goods and/or Services.
8.8 If the Customer is not a consumer within the meaning of the CCA, subject to the conditions of warranty set out in clause 8.8, the Company warrants that if any defect in any Goods and/or Services supplied by the Company become apparent and are reported to the Company within twelve (12) months of the date of delivery (time being of the essence) then the Company will either (at the Company’s sole discretion) replace or remedy the Goods and/or Services.
8.9 The conditions applicable to the warranty given by clause 8.7 are:
(a) limited to the value of any express warranty or warranty card provided to the Customer by the Company at the Company’s sole discretion;
(b) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods and/or Services; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Company; or
(iii) any use of any Goods and/or Services otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods and/or Services after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(c) the warranty shall cease and the Company shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Company’s consent.
(d) limited to any warranty to which the Company is entitled, if the Company did not manufacture the Goods and/or Services. The Company shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods and/or Services;
(e) in respect of all claims the Company shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
(f) otherwise negated absolutely.
8.10 Subject to clause 8.1, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 8.1; and
(b) the Company has agreed that the Goods and/or Services are defective; and
(c) the Goods and/or Services are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods and/or Services are returned in as close a condition to that in which they were delivered as is possible.
8.11 Notwithstanding clauses 8.1 – 8.7 but subject to the CCA, the Company 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 Customer failing to properly maintain or store any Goods and/or Services;
(b) the Customer using the Goods and/or Services for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods and/or Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by the Company;
(e) fair wear and tear, any accident, or act of God.
8.12 In the case of second hand Goods and/or Services, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods and/or Services prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Company as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that the Company has agreed to provide the Customer with the second hand Goods and/or Services and calculated the Price of the second hand Goods and/or Services in reliance of this clause 8.11.
8.13 The Company may in its absolute discretion accept non-defective Goods and/or Services for return in which case the Company may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Goods and/or Services plus any freight costs.
8.14 This clause 8 is subject to clauses 5 and 6.
8.15 Notwithstanding anything contained in this clause if the Company is required by a law to accept a return then the Company will only accept a return on the conditions imposed by that law.
9. The Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
9.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
10. Default & Consequences of Default
10.1 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 one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
10.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own Customer basis and the Company’s collection agency costs.
10.3 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods and/or Services to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
10.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
10.5 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
10.6 If the Customer provides the Company with any instructions for the supply of Goods and/or Services and later revokes or cancels those instructions, the Company shall be entitled to any direct or indirect loss and/or expense (including loss of profit) suffered by the Company whatsoever, arising out of the cancellation.
11. Security And Charge
11.1 Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is now or in the future the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own Customer basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.1.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by the Company to the Customer.
12.2 The Customer 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 Company 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 12.2(a)(i) or 12.2(a)(ii);
(b) indemnify, and upon demand reimburse, the Company 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 and/or Services charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Company;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or Services in favour of a third party without the prior written consent of the Company;
(e) immediately advise the Company of any material change in its business practices of selling the Goods and/or Services which would result in a change in the nature of proceeds derived from such sales.
12.3 The Company and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.4 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.5 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.6 Unless otherwise agreed to in writing by the Company, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.7 If it is held that section 125 of the PPSA must apply, the Customer agrees that at any time after any security interest provided for by this agreement or terms and conditions has become enforceable, the Company may delay taking action to remain the whole or part o the Collateral to the extent permitted by law.
12.8 The Customer’s right to possession of Goods still owned by the Company shall cease if:
(a) the Customer being an individual, commits an act of bankruptcy;
(b) the Customer being a company, circumstances arise where a receiver, manager, administrator, liquidator or controller becomes entitled to take possession of any of its assets, any proceedings are instituted for winding up, or the Customer entering into a Deed of Company Arrangement;
(c) the Customer ceases or threatens to cease conducting business in the normal manner or applying for deregistration or receives a deregistration notice;
(d) any cheque the Customer provides the Company is dishonoured;
(e) the Customer fails to comply with any demand for payment issued by the Company; or
(f) the Customer breaches any of the terms and conditions contained herein.
12.9 The Customer must unconditionally ratify any actions taken by the Company pursuant to this clause.
Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
13. Privacy Act 1988
13.1 The Customer agrees for the Company to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Company.
13.2 The Customer agrees that the Company may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
13.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit.
13.4 The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other agreed purposes or required by):
(a) the provision of the Goods and/or Services; and/or
(b) the marketing of the Goods and/or Services by the Company, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of the Goods and/or Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods and/or Services.
13.5 The Company may give information about the Customer 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 Customer including credit history.
13.6 The information given to the CRB may include:
(a) personal information as outlined in 14.1 above;
(b) name of the credit provider and that the Company is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’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 Customer no longer has any overdue accounts and the Company 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 Company, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
13.7 The Customer shall have the right to request (by e-mail) from the Company:
(a) a copy of the information about the Customer retained by the Company and the right to request that the Company correct any incorrect information; and
(b) that the Company does not disclose any personal information about the Customer for the purpose of direct marketing.
13.8 The Company will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
13.9 The Customer can make a privacy complaint by contacting the Company via e-mail. The Company 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
14. General
14.1 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.
14.2 The expiry or termination of these terms and conditions does not affect the rights which have accrued before that expiry or termination or any rights and obligation of the parties which survive the expiry or termination.
14.3 Any reference in these terms and conditions to any Statute or Statutory Provision includes a reference to that Statute or Statutory Provision as from time to time amended, extended or re-enacted.
14.4 These terms and conditions and any contract to which they apply shall be governed by the laws of the State of Victoria and each party submits to the non-exclusive jurisdiction of the courts of the Victoria.
14.5 The Company shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions.
14.6 In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods and/or Services.
14.7 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Company nor withhold payment of any invoice because part of that invoice is in dispute.
14.8 The Company may license, sub-contract or assign all or any part of its rights and obligations without the Customer’s consent and in so doing the Company is fully discharged from its obligations to the Customer.
14.9 The Customer agrees that the Company may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change in writing.
14.10 This agreement is personal to the Customer and the Customer may not assign the agreement without the Company’s written consent.
14.11 Neither party shall be liable for any breach of contract or liable for any defaults, delays, or failures to perform any of the party’s obligations under the contract due to but not limited 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.
14.12 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
14.13 These terms and conditions shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Company.
14.14 The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change.
14.15 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
14.16 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.
