TERMS & CONDITIONS

Terms and Conditions of Use

The use of this website is subject to the Terms of Use as detailed below in conjunction with our standard Terms and Conditions for the supply of Goods and Services which together constitute the full agreement between you the client and ourselves. By using this website you acknowledge that you have read, accepted and agree to be bound by both of these sets of Terms and Conditions.

If you intend to transact through this website (i.e purchase Goods and/or Services) then you warrant that you are at least 18 years of age, that you have the power to enter into this agreement and you acknowledge that this agreement creates binding and valid legal obligations upon you.

If you do not agree with or do not wish to accept the Terms and Conditions relating to this website, then please do not use this website. You are also advised that failure to accept our Terms and Conditions may result in your inability to access certain sections of this website.

Privacy Policy

We are committed to protecting your Privacy in accordance with Australian Principles. We also recognise that when you choose to provide us information about yourself that you trust us to act responsibly and in your best interests therefore we have the following policies in place to protect your personal information.

Storing Your Information

We will take all reasonable steps to ensure that your information held by us is accurate up-to date, complete, applicable, is not misleading and will only be used for the purposes stated in this Privacy Policy. We will maintain security safeguards to protect your information and will take all reasonable steps to ensure that your information is not disclosed to any unauthorised person or entity.

Securing Your Information

When making a transaction through this website your information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that your information can not be read by or altered by outside influences.

Information We Collect

When you request Goods or Services we may collect personal information supplied by you when you complete an online form in order to facilitate the purchase of Goods and/or Services. Such information will enable us to process your transactions efficiently, analyse our website services and enable us to provide a higher level of customer service (which may include informative or promotional activities).

We may also collect the following information/tracking data for statistical purposes and to help us understand how to make our website more available and user friendly for you and to measure the success of any advertising activities we may under take:

  • Your IP address.
  • The date and time of your visits to our website.
  • Your clicks and activity on this site.
  • The referring site if any through which you clicked through to this site.
  • Technical information on your browser, device and operating systems.

Information We Release

We will only release information about you as authorised by yourself, required by law or where required in order for us to provide Goods or Services to yourself e.g. to third party suppliers, or delivery companies. Where supplied to such third parties the information provided will only be sufficient for the third party to perform their services and may not be used by them for any other purpose.

We will not release your information for any purpose which you could reasonably expect us not to release the information.

Except as detailed above we do not share, give, sell, rent, or lease information to third parties and your personal information will only be disclosed to those employees within our organisation who have a need to know in order to ensure you are provided with information about our products and Services or to request Goods and Services through this website.

Under the Privacy Act legislation you can ask to see any information we may hold about you and you also have the right to have any inaccuracies in the same corrected by us. We will comply with any such requests to the extent required by the Privacy Act legislation within fourteen (14) days of the receipt of your request.

Cookies

Our website uses a technology called cookies (a small element of data that our website may send to your computer) that may be used to provide you with specific information for the purpose of us tracking site usage and traffic. These cookies do not read your hard drive but may be stored on your hard drive to enable our website to recognise you when you return to the same.

Mailing Lists

If at any time you are on a mailing list of ours then you may request to be removed from the same and we will comply with your request if there is no unsubscribe button provided then please contact us with your request using the “Contact Us” section of this website.

Returns, Damaged or Defective Goods

Our policy in relation to Returns, Damaged or Defective Goods shall be as specified in our standard Terms and Conditions for the supply of Goods and Services. We shall not accept returns for change of mind or if you make a wrong decision unless due to our negligence or incorrect information supplied by ourselves.

Copyright and Trademarks

The contents of this website are at all times the copyright or trademark property of either ourselves, our suppliers or linked third parties and you may not distribute, reproduce, display, publish any trademark or other content of this website for any purpose whatsoever without the prior written approval of us, our suppliers or linked third parties (each as applicable). Furthermore you agree to indemnify us against any claims, costs, damages or losses incurred by us should you fail to comply with clause.

Advertisers and Linked Sites

The display on our website of any advertiser or the provision of a link to third party websites does not constitute our endorsement of either the advertiser or third party provider or any of their website content or business practices. As we do not have any control of the content of any third party websites, access to such websites is at your sole risk and we recommend that you thoroughly review the terms and conditions of use and the Privacy policies of any third party website immediately once you access such a site.

We shall accept no liability in regards to any dealings, promotions or activities between yourself and advertisers or third party providers.

Specifications and Information

Specifications and information provided on this website are given in good faith based on our knowledge, experience, or information provided to us by manufacturers and/or suppliers, or derived from sources believed to be accurate at the time the information is received by us, therefore it is recommended if you have any concerns as to the suitability of Goods or Services provided through this website in respect of the use of the Goods or Services or their suitability for a particular use that you contact us or seek external professional opinion.

You acknowledge and accept that colours of items displayed on the website may not reflect the true and actual colour of such items as this may be affected by external influences such as the quality of images supplied to us for use, or the quality, age or settings on your monitor. If colour is a major factor in your decision making we recommend you contact us before purchase.

On-Line Ordering

Display on this website does not guarantee the availability of any particular Good(s) therefore all orders placed through this website shall be subject to confirmation of acceptance by us. Orders for Services shall be subject to confirmation of suitable timeframes between you and ourselves for provision of the Services.

Changes to Terms and Conditions

We reserve the right to change any of the Terms and Conditions displayed on this website (including our Privacy Policy) at any time by notifying you through this website that we have done so. By continuing to use this website it shall be deemed that you agree to be bound by the amended terms and conditions as notified and posted on the website.

Continuous Service

Due to the inherent nature of websites we cannot guarantee uninterrupted or continuous availability of this website and you accept that the website may also be unavailable from time to time for maintenance or scheduled upgrades. Where able we shall give you advanced warning of the same. We shall accept no liability in relation to website downtime whether scheduled or otherwise.

Termination of Use

These terms and your access to our website may be terminated by us (at our sole discretion) at any time without notice or any requirement to give you a reason why. In the event of termination under this clause we shall have no liability to you whatsoever (including for any consequential or direct loss you may suffer).

Jurisdiction

This website (excluding any linked third party sites) is controlled by us from our principal business premises in Australia. It can be accessed from countries around the world to the extent permitted by the website. As each country has laws that may differ from Australia, by accessing this site, you agree that the laws and statutes of Australia shall apply to any dealings, actions or claims arising out of, or in relation to, this agreement, or your use of this website, irrespective of any conflict with any laws and statutes applicable to your country of domicile.

You further acknowledge and agree that the filing of a claim against us (if any) must be made in the State of Australia in which our principal business premises in Australia is domiciled, and that any legal proceedings will be conducted in English.

We make no representation that Goods or Services offered through this website are appropriate, available or suitable for use in countries outside of Australia, and accessing any material or content from, or through, this website which is illegal in your country of domicile is strictly prohibited.

  1. Definitions
    • “Contractor” means GSK Facility Maintenance Group Pty Ltd T/A Aquarius Refrigeration & Air Conditioning, its successors and assigns or any person acting on behalf of and with the authority of GSK Facility Maintenance Group Pty Ltd T/A Aquarius Refrigeration & Air Conditioning.
    • “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting the Contractor to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      • if there is more than one Customer, is a reference to each Customer jointly and severally; and
      • if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Customer’s executors, administrators, successors and permitted assigns.
    • “Goods” means all Goods or Services supplied by the Contractor to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    • “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Contractor and the Customer in accordance with clause 5
    • “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

 

  1. Acceptance
    • The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
    • These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and the Contractor.
    • If the Contractor has been requested by the Customer to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
    • In the event that the Goods and/or Services provided by the Contractor are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by the Contractor and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
    • 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.

 

  1. Errors and Omissions
    • The Customer acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Services.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.

 

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

 

  1. Price and Payment
    • At the Contractor’s sole discretion, the Price shall be either:
      • as indicated on any invoice provided by the Contractor to the Customer; or
      • the Price as at the date of delivery of the Goods according to the Contractor’s current price list; or
      • the Contractor’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    • The Contractor reserves the right to change the Price if a variation to the Contractor’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as poor weather conditions, limitations to accessing the site, safety considerations, defect found on closer inspection, or as a result of any increase to the Contractor in the cost of materials and labour) will be charged for on the basis of the Contractor’s quotation and will be shown as variations on the invoice. The Customer shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    • At the Contractor’s sole discretion, a non-refundable deposit may be required.
    • Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Contractor, which may be:
      • on delivery of the Goods;
      • before delivery of the Goods;
      • by way of instalments/progress payments in accordance with the Contractor’s payment schedule;
      • thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Contractor.
    • 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 Customer and the Contractor.
    • 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 Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
    • Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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. Delivery of Goods
    • Delivery (“Delivery”) of the Goods is taken to occur at the time that:
      • the Customer or the Customer’s nominated carrier takes possession of the Goods at the Contractor’s address; or
      • the Contractor (or the Contractor’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
    • At the Contractor’s sole discretion, the cost of delivery is included in the Price.
    • Any time specified by the Contractor for delivery of the Goods is an estimate only. The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. The Contractor will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. In the event that the Customer is unable to take delivery of the Goods as arranged then the Contractor shall be entitled to charge a reasonable fee for redelivery and/or storage.
    • The Contractor 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.

 

  1. Risk
    • Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
    • If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Contractor is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Contractor is sufficient evidence of the Contractor’s rights to receive the insurance proceeds without the need for any person dealing with the Contractor to make further enquiries.
    • If the Customer requests the Contractor to leave Goods outside the Contractor’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
    • The Customer acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
    • In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Customer then the Customer agrees to notify the Contractor immediately upon any proposed changes. The Customer 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.
    • The Contractor shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however the Contractor cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
    • Whilst the final location of the condensing unit is at the discretion of the Customer, a charge will apply as a variation as per clause 5.2, if the Customer requests the unit to not be located adjacent to the external wall, due to the underground piping required.
    • The final location of the wall, window or floor unit must be determined on site by the Customer.
    • The Contractor shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however the Contractor cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
    • In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Customer shall be responsible for any and all costs involved.
    • The Customer warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods 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 Goods once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring), the Contractor reasonably forms the opinion that the Customer’s premises are not safe for the installation of Goods to proceed then the Contractor shall be entitled to delay installation of the Goods until the Contractor is satisfied that it is safe for the installation to proceed. The Contractor may in agreement with the Customer bring the premises up to a standard suitable for installation to proceed but all such Services undertaken and any additional Goods supplied shall be treated as a variation and be charged for in addition to the Price.
    • 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. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
    • Where the Customer has supplied materials for the Contractor to complete the Services, the Customer acknowledges and 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 Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
    • Any advice, recommendation, information, assistance or service provided by the Contractor in relation to Goods or Services supplied is given in good faith, is based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the Contractor, and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods or Services.

 

  1. Dimensions, Plans and Specifications
    • All customary building industry tolerances shall apply to the dimensions and measurements of the Goods unless the Contractor and the Customer agree otherwise in writing.
    • The Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer.

 

  1. Access
    • The Customer shall ensure that the Contractor has clear and free access to the worksite at all times to enable them to undertake the Services. 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.
    • It is the responsibility of the Customer to ensure that access is suitable to accept the weight of laden trucks, or other lifting/unloading equipment as may be deemed necessary by the Contractor.

 

  1. Underground Locations
    • Prior to the Contractor commencing any work the Customer 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 Customer 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.
    • Whilst the Contractor will take all care to avoid damage to any underground services the Customer 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 1.

 

  1. Compliance with Laws
    • The Customer and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
    • The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
    • The Customer agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

 

  1. Title
    • The Contractor and the Customer agree that ownership of the Goods shall not pass until:
      • the Customer has paid the Contractor all amounts owing to the Contractor; and
      • the Customer has met all of its other obligations to the Contractor.
    • 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.
    • It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 1:
      • the Customer is only a bailee of the Goods and must return the Goods to the Contractor on request.
      • the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      • the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer 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.
      • the Customer should not convert or process the Goods 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 Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs.
      • the Customer irrevocably authorises the Contractor to enter any premises where the Contractor believes the Goods are kept and recover possession of the Goods.
      • the Contractor may recover possession of any Goods in transit whether or not delivery has occurred.
      • the Customer 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 Contractor.
      • the Contractor may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

 

  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • 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 and/or collateral (account) – being a monetary obligation of the Customer to the Contractor for Services – that have previously been supplied and that will be supplied in the future by the Contractor to the Customer.
    • The Customer undertakes to:
      • 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;
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 13.3(a)(ii);
      • 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 Goods charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;
      • 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 Contractor;
      • immediately advise the Contractor 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.
    • The Contractor 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.
    • The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by the Contractor, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Customer must unconditionally ratify any actions taken by the Contractor under clauses 3 to 13.5.
    • 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.

 

  1. Security and Charge
    • In consideration of the Contractor agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Customer 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.
    • The Customer irrevocably appoints the Contractor and each director of the Contractor as the Customer’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 Customer’s behalf.

 

  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Customer must inspect the Goods on delivery and must within seven (7) 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 Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Contractor to inspect the Goods.
    • 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).
    • The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • 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 Goods. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Customer 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.
    • If the Contractor is required to replace the Goods under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Customer has paid for the Goods.
    • If the Customer is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Goods is:
      • limited to the value of any express warranty or warranty card provided to the Customer by the Contractor at the Contractor’s sole discretion;
      • limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Goods;
      • otherwise negated absolutely.
    • Subject to this clause 15, returns will only be accepted provided that:
      • the Customer has complied with the provisions of clause 1; and
      • the Contractor has agreed that the Goods are defective; and
      • the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
      • the Goods are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 15.8 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:
      • the Customer failing to properly maintain or store any Goods;
      • the Customer using the Goods for any purpose other than that for which they were designed;
      • the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Customer failing to follow any instructions or guidelines provided by the Contractor;
      • fair wear and tear, any accident, or act of God.
    • The Contractor may in its absolute discretion accept non-defective Goods for return in which case the Contractor may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
    • 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. Intellectual Property
    • Where the Contractor has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Contractor. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Contractor.
    • The Customer 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 Customer’s order and the Customer agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.
    • The Customer agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Contractor has created for the Customer.

 

  1. Default and Consequences of Default
    • 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.
    • If the Customer owes the Contractor any money the Customer 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 contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies the Contractor may have under this contract, if a Customer has made payment to the Contractor, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
    • 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 Customer which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:
      • any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Customer will be unable to make a payment when it falls due;
      • the Customer has exceeded any applicable credit limit provided by the Contractor;
      • 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

 

  1. Cancellation
    • Without prejudice to any other remedies the Contractor may have, if at any time the Customer 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 Goods to the Customer. The Contractor will not be liable to the Customer for any loss or damage the Customer suffers because the Contractor has exercised its rights under this clause.
    • The Contractor 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 Customer. On giving such notice the Contractor shall repay to the Customer any money paid by the Customer for the Goods. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Customer cancels delivery of Goods the Customer 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).
    • Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

 

  1. Privacy Act 1988
    • The Customer agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Contractor.
    • The Customer agrees that the Contractor may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
      • to assess an application by the Customer; and/or
      • to notify other credit providers of a default by the Customer; and/or
      • 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
      • to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
    • The Customer consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
    • The Customer agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by):
      • the provision of Goods; and/or
      • analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
      • enabling the collection of amounts outstanding in relation to the Goods.
    • The Contractor may give information about the Customer to a CRB for the following purposes:
      • to obtain a consumer credit report;
      • allow the CRB to create or maintain a credit information file about the Customer including credit history.
    • The information given to the CRB may include:
      • personal information as outlined in 1 above;
      • name of the credit provider and that the Contractor is a current credit provider to the Customer;
      • whether the credit provider is a licensee;
      • type of consumer credit;
      • 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);
      • 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 Contractor has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
      • information that, in the opinion of the Contractor, the Customer has committed a serious credit infringement;
      • advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    • The Customer shall have the right to request (by e-mail) from the Contractor:
      • a copy of the information about the Customer retained by the Contractor and the right to request that the Contractor correct any incorrect information; and
      • that the Contractor does not disclose any personal information about the Customer for the purpose of direct marketing.
    • The Contractor 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 contract or is required to be maintained and/or stored in accordance with the law.
    • The Customer can make a privacy complaint by contacting the Contractor via e-mail. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at oaic.gov.au.

 

  1. Unpaid Seller’s Rights
    • Where the Customer has left any item with the Contractor for repair, modification, exchange or for the Contractor to perform any other service in relation to the item and the Contractor has not received or been tendered the whole of any monies owing to it by the Customer, the Contractor shall have, until all monies owing to the Contractor are paid:
      • a lien on the item; and
      • the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
    • The lien of the Contractor shall continue despite the commencement of proceedings, or judgment for any monies owing to the Contractor having been obtained against the Customer.

 

  1. Service of Notices
    • Any written notice given under this contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this contract;
      • by sending it by registered post to the address of the other party as stated in this contract;
      • 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;
      • if sent by email to the other party’s last known email address.
    • 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.

 

  1. Trusts
    • If the Customer 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 Contractor may have notice of the Trust, the Customer covenants with the Contractor as follows:
      • the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
      • the Customer 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 Customer against the Trust or the trust fund. The Customer 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.
      • the Customer will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
        • the removal, replacement or retirement of the Customer as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

 

  1. Building and Construction Industry Payments Act 2004
    • At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
    • Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.

 

  1. General
    • 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.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the Brisbane courts in Queensland.
    • Subject to clause 15 the Contractor shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer 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 Goods).
    • The Contractor may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
    • The Customer cannot licence or assign without the written approval of the Contractor.
    • The Contractor 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 Customer agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
    • The Customer agrees that the Contractor may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Contractor to provide Goods to the Customer.
    • 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.
    • 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.