Terms & Conditions
Stott Hoare Standard Terms and Conditions
1. DEFINITIONS & INTERPRETATION
1.1 “ADI” means authorised deposit-taking institution and has the same meaning as in the Banking Act 1959.
1.2 “Agreement” means the agreement for the provision of Goods and/or Services by the Seller to the Client pursuant to the Terms and Conditions.
1.3 “Client” shall mean the recipient of Goods and/or Services supplied by the Seller and include its officers, agents, sub-contractors, successors and assigns or any person acting on behalf of and with the authority of the Client as described on any quotation, work authorisation or other form as provided by the Seller to the Client.
1.4 “Goods” shall mean Goods ordered and supplied by the Seller to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the Purchase Order(s) and Invoice(s).
1.5 “Guarantor” means that person (or persons) or entity who agrees to be liable for the debts of the Client on a principal debtor basis pursuant to this Agreement.
1.6 “Invoice” means a taxation invoice for Goods and/or Services supplied by the Seller to the Client.
1.7 “Manufacturer” means the manufacturer and producer of the Goods.
1.8 “Party(ies)” means the parties to the Agreement including but not limited to the Seller and the Client.
1.9 “Price” shall mean the price payable for the Goods and/or Services specified in the Invoice in accordance with Clause 4 of this contract.
1.10 “Purchase Order” means an order request for Goods and/or Services by the Client to the Seller.
1.11 “Seller” shall mean S&H Investments Pty Ltd (ACN 009 146 516) trading as ‘Stott Hoare’ and include its officers, agents, sub-contractors, successors and assigns or any person acting on behalf of and with the authority of S&H Investments Pty Ltd trading as ‘Stott Hoare’.
1.12 “Services” shall mean all Services requested and supplied by the Seller to the Client, including any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above), and as specified in the Purchase Order(s) and the Invoice(s).
1.13 “Equipment” means any equipment operated by the Client in relation to the Services.
1.14 “Special Conditions” means any special conditions to the agreement as specified by the Seller.
1.15 “Terms and Conditions” means these terms and conditions of the Seller’s supply of Goods and Services to the Client under the Agreement.
1.16 In interpreting these Terms and Conditions:
(a) the clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
(b) any obligation on the part of two (2) or more persons or entities binds them jointly and severally;
(c) words in the singular number include the plural and vice versa;
(d) words importing a gender include any other gender;
(e) a reference to a person includes a partnership and a body, whether corporate or otherwise;
(f) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(g) a reference to a Schedule includes a reference to any part of that Schedule which is not physically annexed to these Terms and Conditions but which is incorporated by reference;
(h) monetary references are references to Australian dollar currency (“$AUD”); and
(i) in the interpretation of these Terms and Conditions, no rule of contract interpretation applies to the disadvantage of a Party on the basis that it put forward these Terms and Conditions or any part of them.
2. APPLICATION OF TERMS AND CONDITIONS OF TRADE
2.1 The Client wishes to engage the Seller for the purposes of providing the Client with Goods and/or Services on the terms and conditions as set out in this document.
3.1 Any instructions received by the Seller from the Client for the supply of Goods and/or Services, and/or the Client’s acceptance of Goods and/or Services supplied by the Seller shall constitute acceptance of these Terms and Conditions contained herein.
3.2 Where more than one Client has entered into this Agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these Terms and Conditions by the Client, the Terms and Conditions are binding and can only be amended with the written consent both the Parties.
3.4 The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Seller as a result of the Client’s failure to comply with this clause.
4. PRICE AND PAYMENT
4.1 At the Seller’s sole discretion the Price shall be either:
(a) as indicated on Invoices provided by the Seller to the Client in respect of Goods supplied; or
(b) the Seller’s quoted Price (subject to clause 4.2) which shall be binding upon the Seller provided that the Client shall accept the Seller’s quotation in writing within fourteen (14) days.
4.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation, subject to prior written notice of such being provided to the Client.
4.3 The Seller may submit a detailed payment claim at intervals not less than one (1) 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. Progress payment shall be made within fourteen (14) working days of each monthly payment claim.
4.4 At the Seller’s sole discretion a deposit may be required.
4.5 At the Seller’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Clients shall be made by instalments in accordance with the Seller’s payment schedule.
4.6 Time for payment for the Goods 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 on the delivery of the goods and/or services. The Seller may grant extended terms of payment to the Client.
4.7 Payment will be made by cash, by Electronic Funds Transfer (EFT), by bank cheque, or by any other method as agreed to between the Parties.
4.8 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.
4.9 If an order is to be funded by a finance company, the Client must provide specific details of this company when placing their purchase order.
4.10 If the Seller is advised an order is to be funded by a finance company after the processing date of their invoice, a $250.00 Administration Fee and/or applicable late payment interest specified on the invoice will be payable.
5. DELIVERY OF GOODS
5.1 Purchase Orders
(a) The Client will provide the Seller with a Purchase Order for any required Goods and/or Services.
(b) The Purchase Order will be in writing and will specify:
(i) the type of Goods and/or Services requested;
(ii) the quantity of Goods requested, if applicable; and
(iii)a delivery address.
(c) The Seller will notify the Client within two (2) business days of receipt of any Purchase Order:
(i) that the Seller has received the Purchase Order;
(ii) whether the Seller reasonably believes that the Goods and/or Services can be supplied; and
(iii)that the Seller accepts the Purchase Order.
(d) A Purchase Order cannot be revoked by either Party without the prior written consent of the other Party.
5.2 Delivery of Goods
(a) Delivery of Goods will be provided by the Seller to the Client’s nominated delivery points and will be in accordance with any Purchase Order.
(b) All Goods specified in any Purchase Order are to be delivered within:
(i) any timeframe specified in a Purchase Order that is agreed to by the Seller; or
(ii) if Clause 5.2(b)(i) is unreasonable or impossible, as mutually arranged between the Parties being within a reasonable time.
(c) The Seller will notify the Client as soon as possible if the Seller becomes aware of any delay in the delivery of Goods pursuant to a Purchase Order.
(d) The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery and in the event that the Client is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for re-delivery.
(e) All Goods must be adequately packaged and labelled in accordance with:
(i) good commercial practice to avoid damage in transit to their final destination; and
(ii) any legal or regulatory requirements.
(f) The Seller must specify if the costs of delivery are:
(i) included in the Price; or
(ii) in addition to the Price.
(g) The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
(h) The Seller shall not be liable for any loss or damage to the Client resulting from late delivery of the Goods.
The Seller will provide the Client with an Invoice for all Goods and/or Services supplied by the Seller to the Client pursuant to a Purchase Order.
6. DELIVERY OF SERVICES
6.1 The Seller will exercise due skill, care and diligence in providing the Services.
6.2 The Seller will take all reasonable steps to provide the Services so as not to give rise to, cause or contribute to any breach by the Client of its obligations under any contractual arrangement with a third-party.
6.3 The Seller will obtain and keep current all licences and certifications required to provide the Services.
6.4 The Seller is not liable in respect to any claim which may be suffered or incurred or which may arise directly as a consequence of the Services provided.
6.5 The Seller will endeavour to follow the applicable manufacturer’s guidelines and instructions in providing the Services.
6.6 In the event additional hours are required to those originally anticipated to provide the Services, the Seller reserves the right to request a time and/or cost variation to the Agreement.
6.7 The Client will indemnify and hold harmless the Seller against any Claim (including legal costs on a full indemnity basis) arising out of or connected with:
(a) any damage to real or personal property
(b) any breach of this Agreement by the Client;
(c) death or injury to any person arising out of or in connection with the provision of the Services;
(d) the proper and lawful use of any Equipment by the Seller.
6.8 The Client is responsible for maintaining the Equipment in good working order and it will reimburse the Seller for costs incurred as a consequence of any inoperable Equipment.
6.9 The Client will:
(a) take all reasonable steps to provide the Seller with any further information, and all necessary facilities with respect to its premises, that the Seller requires to perform the Services; and
(b) take all reasonable steps to provide the Seller with access to, and use of, its premises for the purpose of the Seller providing the Services to the Client.
7. RISK, TITLE AND THE PERSONAL PROPERTY SECURITIES ACT
7.1 Products supplied by the Seller to the Client will be at the Client’s risk upon
(a) delivery to the Client; or
(b) delivery to the Client’s custody, possession or control, whichever is the sooner.
7.2 Ownership of the Goods remains with the Seller until all the amounts owing by the Client to the Seller (including without limitation to the purchase price of the Goods and other debts owing to the Seller) have been paid in full.
7.3 Until all the amounts owing by the Client have been paid in full the Client may sell the Goods in the ordinary course of its business but only as trustee and agent of the Seller. The Client must not represent to any third party that it is acting for the Seller, and the Seller will not be bound by any contracts with third parties to which the Client is a party.
7.4 The Client must hold the sale proceeds it receives from any sale of the Goods as trustee and agent for the Seller. All such sale proceeds must be placed in an ADI account separate from its own monies and the Client must not allow any person to have control of, or grant a security interest over the proceeds or the accounts in which they are held. The Client must make immediate payment to the Seller from the accounts in which the sale proceeds are held of all amounts which may be owing by the Client to the Seller.
7.5 Until all amounts owing by the Client have been paid in full, the Client may, subject to clause 7.2, take possession of the Goods and hold them as trustee and agent for the Seller. The Client must store the Goods in such a manner that they are readily distinguishable from other goods held by the Client so they clearly show that they are the property of the Seller.
7.6 If the Client becomes insolvent or does not comply with any of these Terms and Conditions in relation to the payment of any amount owing to the Seller or otherwise, then:
(a) immediately on the Seller’s request, the Client must return any Goods acquired from the Seller;
(b) the Seller may enter the Client’s business premises (or where the Goods are stored) and take possession of the Goods; and
(c) the Seller may retain, sell or otherwise dispose of the Goods.
7.7 If the Client makes a payment to the Seller at any time whether in connection with these Terms and Conditions or otherwise, the Seller may, at its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.
7.8 If Chapter 4 of the Personal Property Securities Act 2009 (Cth)(“PPSA”) would otherwise apply to the enforcement of a security interest arising in connection with an Agreement to which these Terms and Conditions apply, the Client agrees that the following provisions of the PPSA will not apply to the enforcement of the Agreement to which these Terms and Conditions apply:
(a) Section 95 (notice of removal of accession), to the extent that it requires the Seller to give a notice to the Client;
(b) Section 96 (when a person with an interest in the whole may retain an accession);
(c) Subsection 121(4) (enforcement of liquid assets – notice to grantor);
(d) Section 125 (obligation to dispose of or retain collateral);
(e) Section 130 (notice of disposal of collateral), to the extent that it requires the Seller to give a notice to the Client;
(f) Section 132(3)(d) (contents of statement of account after disposal);
(g) Section 132(4) (statement of account if no disposal);
(h) Section 135 (notice of retention of collateral);
(i) Section 142 (redemption of collateral); and
(j) Section 143 (reinstatement of security agreement).
7.9 Notices or documents required or permitted to be given to the Seller for the purposes of the PPSA must be given in accordance with the PPSA.
7.10 The Client consents to the Seller affecting a registration on the PPSA register (in any manner the Seller considers appropriate) in relation to any security interest contemplated by the Agreement and the Client agrees to provide all assistance reasonably required to facilitate this. The Client waives the right to receive notice of a verification statement in relation to any registration on the register.
(a) Until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products.
8. CLIENT’S DISCLAIMER
8.1 The Client hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Seller and the Client acknowledges that the Goods and/or Services are bought relying solely upon the Client’s skill and judgement.
9.1 Any condition or warranty which would otherwise be implied in the Agreement is hereby excluded to the full extent permitted by law.
9.2 Where legislation implies in the Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty will be deemed to be included in the Agreement. However, the liability of the Seller for any breach of such condition or warranty will be limited, at the option of the Seller, to one or more of the following:
(a) if the breach relates to Goods:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of such Goods;
(iii)the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(iv) the payment of the cost of having the Goods repaired; and
(b) if the breach relates to Services:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
9.3 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage .
9.4 The Seller may repair or replace any Goods or part of any Goods with second-hand replacement parts of the same or similar age, use and quality as those Goods or part of any Goods subject to such second-hand parts being suitable for such purpose.
10.1 Goods will not be accepted for return other than in accordance with 9.3 above.
11. THE COMPETITION AND CONSUMER ACT 2010 (CTH) (“CCA”) AND THE FAIR TRADING ACT (“FTA”)
11.1 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.
(a) Subject to clause 9, the Seller warrants to the Client that, in the case of computer hardware Goods (“Hardware”) supplied to the Client by the Seller, such Hardware will be of merchantable quality and will be in good working order for a period being:
(i) the warranty period for the Hardware as provided by the relevant and applicable Manufacturer of that Hardware; or
(ii) if the Manufacturer does not provide any applicable warranty for the Hardware, then 90 days from the purchase date.
(a) In this clause 12.2:
(i) “Media” means the tangible property on which a Program is recorded and stored, including but is not limited to a diskette, tape, digital versatile disc or compact disc.
(ii) “Program” means the intangible intellectual property recorded onto the Media.
(b) In the case of a Program type Good(s) supplied to the Client by the Seller, such Program is provided “as is” and without any express or implied warranty from the Seller, including warranties as to merchantability and fitness for purpose. In the event that such Program is defective, the Client will bear all costs and loss in relation to such Program. The Seller does not warrant the functions contained in the Program will meet the Client’s requirements.
(c) In the case of the Media, the Seller warrants such to be free from defect and will be of good merchantable quality under normal use for a period of ninety (90) days from the date of delivery to the Client.
(d) This clause 12.2 is subject to clause 9.
12.3 Subject to the conditions of warranty set out in clause the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within 90 days of the date of invoice (time being of the essence) then the Seller will either (at the Seller’s sole discretion) replace or remedy the workmanship.
12.4 The conditions applicable to the warranty given by clause 12.3 are:
(a) 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 Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by the Seller; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods 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.
(b) the warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
(c) in respect of all claims the Seller shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
12.5 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the Manufacturer. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the Manufacturer.
12.6 In the case of IBM Personal Computer products during their relevant warranty period, the Client may obtain warranty services from IBM or any authorised IBM Personal Computer Dealer who, at the Clients option will either repair or replace the specific Good(s) at no additional charge, provided that:
(a) this warranty only applies to Good(s) purchased in Australia;
(b) repair parts and replacement parts will be furnished on an exchange basis, being either new or second-hand;
(c) this limited warranty does not include service to repair damage as set out in clause 11.4(a);
(d) limited warranty service may be obtained by delivering the Good(s) during the warranty period to an authorised IBM Personal Computer Dealer providing warranty service or an IBM Service Centre;
(e) the Client assumes all risk of loss or damage to the Good(s) in transit if the Good(s) is shipped or mailed and must pay the costs of mailing or shipping the Good(s) to and from the warranty service location.
13. LIABILITY AND INDEMNITIES
13.1 The Parties shall not be under any liability whatsoever to each other for any indirect or consequential loss and/or expense (including loss of profit) suffered by a Party arising out of a breach by the other Party of these Terms and Conditions.
13.2 Subject to Clause 13.3, the Client warrants that it has not relied on any representation made by the Seller which has not been stated expressly in the Agreement or upon any descriptions, illustrations or specifications contained in any documentation produced by the Seller.
13.3 The Client acknowledges and agrees that, to the extent the Seller has made any representation which is not otherwise expressly stated in the Agreement, the Client has been provided with an opportunity to independently verify the accuracy of that representation.
13.4 Subject to any other provision to the contrary in the Agreement, Each Party will at all times indemnify and hold harmless (“the Indemnifier”) the other Party (“ the Indemnified”) from and against any loss and damage (including reasonable legal costs and expenses) reasonably incurred or suffered by the Indemnified arising from any claim, proceedings or judgement against the Indemnified where such Loss was caused by:
(a) a breach by the Indemnifier of its obligations under the Agreement; or
(b) any wilful, unlawful or negligent act or omission of the Indemnifier.
13.5 The Client will hold the Seller harmless for any loss or damage incurred by the Client as a result of the Seller being unable to provide Goods due to the act or omission of any Manufacturer or third party supplier, provided that the Seller will take all reasonable and necessary steps to obtain such Goods including from an alternative supplier or manufacturer if so requested by the Client and with any variation in price to be the responsibility of the Client.
14. DEFAULT AND CONSEQUENCES
14.1 Neither Party shall take any action (including legal action) against the other Party for a default of this Agreement without first giving the defaulting Party written notice specifying the default and providing the defaulting Party with seven (7) days to rectify such.
14.2 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 judgement.
14.3 If the Client defaults in payment of any Invoice when due, the Client shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
14.4 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods and/or Services to the Client and any of its other obligations under these Terms and Conditions. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
14.5 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.
14.6 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15. SECURITY AND CHARGE
15.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under these Terms and Conditions. The Client and/or the Guarantor acknowledge and agree that the Seller (or the Seller’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 Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 15.1
16.1 The Seller may cancel any contract to which these Terms and Conditions apply or cancel delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Client. On giving such notice the Seller shall repay to the Client any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods and/or Services the Client shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
17. FORCE MAJEURE
17.1 If the Seller is delayed, hindered, or otherwise prevented from complying with its obligations under these Terms and Conditions by reason of events or circumstances beyond the reasonable control of the Seller including but not limited to acts of God, wars, riots, strikes, lock-outs, trade disputes or labour disturbances, breakdown of plant or machinery, accidents, storm, fire, floods, difficulties in obtaining materials, goods, transport or labour or any other circumstances affecting the supply of Goods and Services, the Seller is not liable to the Client for any loss or damage which is or may be suffered by the Client whether as a direct or indirect result of any such events or circumstances.
18. PRIVACY ACT 1988 (CTH)
18.1 The Client and/or the Guarantor/s agrees for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Seller.
18.2 The Client and/or the Guarantor/s agrees that the Seller may exchange information about the Client and the Guarantor/s 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 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 credit worthiness of Client and/or Guarantor/s.
18.3 The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Client and Seller or required by law from time to time:
(a) provision of Goods and/or Services; and/or
(b) marketing of Goods and/or Services by the Seller, its agents or distributors in relation to the Goods and/or Services; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by 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 Goods.
18.5 The Seller 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; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
The Client and the Seller will not disclose to any other person at any time during or after the provision of the Goods and/or Services, any information relating to the other Party without the Party’s written consent.
20.1 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.
20.2 These Terms and Conditions and any contract to which they apply shall be governed by the laws of Western Australia and the Parties unconditionally submit to the jurisdiction of the courts of Western Australia.
20.3 In the event of any breach of this Agreement by the Seller the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods and/or Services.
20.4 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 Seller.
20.5 The Seller may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.6 The Seller 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 Seller notifies the Client of such change.
20.7 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.
20.8 The failure by the Seller to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.
20.9 In the event that there is any conflict between these Terms and Conditions and the Special Conditions, the Special Conditions are to prevail to the extent of that inconsistency.
20.10 The Client agrees that, upon receipt or notice of these Terms and Conditions any Purchase Orders (oral, written or electronic) then received by the Seller from the Client for the provision of any Goods and/or Services will constitute formation of an agreement between the Seller and the Client, and the Client’s acceptance of these Terms and Conditions.
20.11 The Seller, in its provision of Goods and/or Services, is under no circumstances liable for:
(a) Loss of, or damage to data
(b) Indirect, consequential or incidental damages and losses
(c) Lost profits, business, revenue, goodwill, or anticipated savings