View PDF Terms & Conditions of Trade

  1. 1.      Definitions

1.1       “Contractor” means Industrial Electrics Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Industrial Electrics Pty Ltd.

1.2       “Client” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3       “Works” means all Works 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).

1.4       “Price” means the Price payable for the Works as agreed between the Contractor and the Client in accordance with clause 5 below.

 

  1. 2.      Acceptance

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 any Works.

2.2       These terms and conditions may only be amended with the Contractor’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Contractor.

2.3       The Client accepts that the Contractor reserves the right to change the Price offered for RECS without notification or compensation due market REC value fluctuation as per clause 5.2(d).

 

  1. 3.      Finance

3.1       If this agreement is conditional upon the Client obtaining a loan from a financial institution then they must provide the Contractor with written confirmation of the loan approval before the Contractor will commence any Works.

 

  1. 4.      Change in Control

4.1       The 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, 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.

 

  1. 5.      Price and Payment

5.1       At 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 Materials supplied; or

(b)  the Contractor’s quoted Price (subject to clause 5.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.

5.2       The Contractor reserves the right to change the Price:

(a)  if a variation to the Materials which are to 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 latent conditions with the discovery of hidden or unidentifiable difficulties (including, but not limited to, accessing the site because of hard rock barriers below the surface or iron reinforcing rods in concrete, safety considerations, discovery of asbestos, hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works) which are only discovered on commencement of the Works; or

(d)  the value of any Renewable Energy Certificates (RECs) or Small Technology Certificates (STCs) upon which the sale Price is dependant on any increases or decreases, as RECs and STCs are traded on the open market and the price varies from time to time; or

(e)  in the event of increases to the Contractor in the cost of labour or Materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange, international freight and insurance charges and/or the variation in Price for metals such as copper cable at the date of award of contract or the effects of changes to wage rates due to industry awards) which are beyond the Contractor’s control.

5.3       At the Contractor’s sole discretion a deposit may be required.

5.4       Time 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)  by way of progress payments in accordance with the Contractor’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or

(c)  thirty (30) days following the date of the invoice; 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.

5.5       Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and the Contractor.

5.6       Unless 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 agreement 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.

 

  1. 6.      Rebates & Incentives

6.1       The Client authorises the Contractor to apply in the Client’s name for any grant, rebate or any other benefit (hereafter referred to as a Rebate) available from the Commonwealth, State Government, or any local government council in relation to the installation of a solar system and to receive payment of that Rebate on the Client’s behalf.

6.2       The Client agrees to sign any necessary documents, provide any necessary information and take any necessary action the Contractor may require, to enable the Contractor to obtain payment of a Rebate.

6.3       If the Contractor receives payment of a Rebate, the Contractor will apply that payment in or towards satisfaction of the Price.

6.4       The Contractor is not responsible for any failure to obtain a Rebate and the Client shall remain liable to the Contractor for the whole of the Price and any other amounts due to the Contractorwhich are not paid in full.

6.5       The Client’s unconditionally assigns all Renewable Energy Certificates (RECs) or Small Technology Certificates (STCs) to which the Client is entitled in respect of the Materialsto the Contractor unless otherwise negotiated.

6.6       The Client acknowledges that, in certain circumstances, the Commonwealth Government, State Government or local government council (as applicable) may require repayment of a Rebate by the Client and in such circumstances the Contractor will have no liability to the Client.

6.7       In addition to the provisions under clause 5.2 the Contractormay vary the Priceof this contract;

(a)     where the value of any Renewable Energy Certificate’s (REC’s) or Small Technology Certificates (STCs)  upon which the sale Price is dependant, decreases by more than fifteen percent (15%), as REC’s are traded on the open market and the price varies from time to time; or

(b)     where there is any change to any monies available to the Client from the Australian Federal Government’s Renewable Energy Target Program (RET Program) or any other Commonwealth, State or Local Government rebates or incentives.

 

  1. 7.      Delivery of the Works

7.1       Delivery (“Delivery”) of the Materials is taken to occur at the time that the Contractor (or the Contractor’s nominated carrier) delivers the Materials to the Client’s nominated address even if the Client is not present at the address.

7.2       At the Contractor’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.

7.3       Subject to clause 7.4 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.4       The 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 site ready for the Works; or

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

7.5       The Contractor may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

7.6       Any time or date given by the Contractor to the Client is an estimate only. The Contractor shall not be liable for any loss or damage whatsoever due to failure by the Contractor to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of the Contractor.

 

  1. 8.      Risk

8.1       If 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. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;

(i)   the Client or the Client’s nominated carrier takes possession of the Materials at the Contractor’s address; or

(ii) 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).

(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.

8.2       Notwithstanding the provisions of clause 8.1 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.

8.3       Where the Client has supplied Materials for the Contractor to complete the Works, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the Materials. The Contractor 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 Materials supplied by the Client.

  1. 9.      Client Acknowledgments

9.1       The Client acknowledges that the performance of the Materials may be affected by the actions of third parties and environmental conditions including, without limitation, the number of hours of sunlight, cloud cover, weather patterns, the location of the Materials and the location of surrounding structures and flora.

9.2       The Client acknowledges that some buildings may not have the optimum orientation for the installation of the Materials or components and therefore understands and accepts that the Materials performance may be compromised in such situations. Notwithstanding the former the Contractor will use its best endeavours to install and position the Materials to maximise orientation and exposure to direct sunlight.

9.3       The Client acknowledges and agrees that they shall not be entitled to withhold any payment due under this contract because of any delay in the connection of, or the supply of electricity to and/or from the Materials by an electrical distributor or any other third party.

9.4       The Client acknowledges that all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in the Contractor’s fact sheets, price lists or advertising material are indicative only and agrees that they have not relied on such information.

 

  1. 10.    Installation

10.1    The 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 electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that the Contractor, its employees or the Contractor’s 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 7.4 above) until the Contractor is satisfied that it is safe for the installation to proceed.

 

  1. 11.    Air Conditioning Risk

11.1    Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 5.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.

11.2    The final location of the wall, window or floor unit must be determined on site by the Client.

11.3    The Client acknowledges and agrees that the Contractor does not guarantee any noise levels (external or internal) and the Contractor shall not be held liable for any loss, damages, or costs, however resulting from noise levels.

11.4    In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved.

11.5    The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.

11.6    In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify the Contractor immediately upon any proposed changes.  The Client agrees to indemnify the Contractor against any additional costs incurred with such a relocation of electrical wiring.  All such variances shall be invoiced in accordance with clause 5.2.

 

  1. 12.    Access

12.1    The Client shall ensure that the Contractor has clear and free access to the work site at all times to enable them to undertake the works. The Contractor 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 Contractor.

 

 

  1. 13.    Underground Locations

13.1    Prior to the Contractor commencing any work the Client must advise the Contractor of the precise location of all underground services on the site and clearly mark the same. The underground mains & 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 site.

13.2    Whilst 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 13.1.

 

  1. 14.    Title

14.1    The 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.

14.2    Receipt 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.

14.3    It is further agreed that:

(a)  until ownership of the Materials passes to the Client in accordance with clause 14.1 that 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 Materials 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.

(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.

 

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

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

15.2    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 Materials that have previously been supplied and that will be supplied in the future by the Contractor to the Client.

15.3    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 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 in favour of a third party without the prior written consent of the Contractor; and

(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.

15.4    The 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.

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

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

15.7    Unless 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.

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

15.9    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 of the PPSA.

 

  1. 16.    Security and Charge

16.1    In consideration of the Contractor agreeing to supply the Materials, 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).

16.2    The 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.

16.3    The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.

 

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

17.1    The Client must inspect all Materials on delivery (or the Works on completion) and must within thirty (30) days 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.

17.2    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).

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

17.4    Except 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.

17.5    If 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.

17.6    If 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.

17.7    If 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.

17.8    If 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.

17.9    Subject 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.

17.10 Notwithstanding 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.

17.11 Notwithstanding 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.

 

  1. 18.    Intellectual Property

18.1    Where 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.

18.2    The 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.

 

  1. 19.    Default and Consequences of Default

19.1    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 Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

19.2    If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s collection agency costs, and bank dishonour fees).

19.3    Without prejudice to any other remedies the Contractor 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 Contractor may suspend or terminate the supply of Works to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.

19.4    Without 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 becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

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

 

  1. 20.    Compliance with Laws

20.1    Both the Client and the Contractor agree that they will at all times ensure that they 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 occupational health and safety laws relating to building/construction sites, and any other relevant safety standards or legislation, particularly those in relation to Asbestos/Hazardous Materials and the safe removal and disposal of the same.

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

20.3    All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations 2002 and all subsequent amendments.  All of the cabling work will comply with the Australian and New Zealand Wiring standards.

 

  1. 21.    Cancellation

21.1    The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Contractor for Works already performed. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.

21.2    In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).

21.3    Cancellation 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.

 

  1. 22.    Privacy Act 1988

22.1    The Client agrees for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Contractor.

22.2    The Client agrees that the Contractor may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.

The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

22.3    The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

22.4    The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other purposes as shall be agreed between the Client and Contractor or required by law from time to time):

(a)  the provision of Works; and/or

(b)  the marketing of Works by the Contractor, its agents or distributors; and/or

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

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

(e)  enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Works.

22.5    The Contractor may give information about the Client to a credit reporting agency for the following purposes:

(a)  to obtain a consumer credit report about the Client;

(b)  allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

22.6    The information given to the credit reporting agency may include:

(a)  personal particulars (the Client’s name, sex, address, previous  addresses, date of birth, name of employer and driver’s licence number);

(b)  details concerning the Client’s application for credit or commercial credit and the amount requested;

(c)  advice that the Contractor is a current credit provider to the Client;

(d)  advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

(e)  that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

(f)   information that, in the opinion of the Contractor, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);

(g)  advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;

(h)  that credit provided to the Client by the Contractor has been paid or otherwise discharged.

 

  1. 23.    Building and Construction Industry Payments Act 2004

23.1    At 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 Payments Act 2004may apply.

23.2    Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004of Queensland, except to the extent permitted by the Act where applicable.

 

  1. 24.    General

24.1    The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’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.

24.2    These terms and conditions and any contract to which they apply shall be governed by the laws of the state of Queensland in which the Contractor has its principal place of business, and are subject to the jurisdiction of the Southport Court in that state. 

24.3    Subject to clause 17 the Contractor 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 Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

24.4    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 Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.

24.5    The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

24.6    The Client agrees that the Contractor may amend these terms and conditions at any time. If the Contractor makes a change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Contractor to provide any Works to the Client.

24.7    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.

24.8    The Client 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.