1. Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other
document or amendments expressed to be supplemental to this Contract.
1.2 “Seller” means AMS Doors Timber and Hardware Pty Ltd T/A AMS Doors Timber and Hardware, its successors
and assigns or any person acting on behalf of and with the authority of AMS Doors Timber and Hardware Pty Ltd
T/A AMS Doors Timber and Hardware.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client
requesting the Seller to provide the Services as specified in any proposal, quotation, order, invoice or other
documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by the Seller to the Client at the Client’s request from time to time
(where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form
including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how,
trade secrets, financial and commercial affairs, contracts, client information (including but not limited to,
“Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact
(email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where
applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount
of data (including Personal Information) specific to a particular client and website, and can be accessed either by
the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the
background when using the Seller’s website, then the Client shall have the right to enable / disable the
Cookies first by selecting the option to enable / disable provided on the website, prior to making
enquiries via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Seller
and the Client in accordance with clause 6 below.
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act
1999” (Cth).
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 the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document
or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the
consent of both parties.
2.4 The Client acknowledges and accepts that:
(a) the supply of Goods on credit shall not take effect until the Client has completed a credit application with the
Seller and it has been approved with a credit limit established for the account;
(b) in the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds
the payment terms, the Seller reserves the right to refuse Delivery; and
(c) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or
cease to be available, the Seller reserves the right to vary the Price with alternative Goods as per clause 6.2.
2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied
with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any
Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that the Seller shall, without prejudice, accept no liability in respect of any
alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Seller in the formation and/or administration of this
Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Seller in respect of the
Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the
negligence and/or wilful misconduct of the Seller; the Client shall not be entitled to treat this Contract as
repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the
Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall
be liable for any loss incurred by the Seller as a result of the Client’s failure to comply with this clause.
5. On-Line Ordering
5.1 The Client acknowledges and agrees that:
(a) the Seller does not guarantee the website’s performance;
(b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed
through the website shall be subject to confirmation of acceptance by the Seller;
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
(d) there are inherent hazards in electronic distribution, and as such the Seller cannot warrant against delays or
errors in transmitting data between the Client and the Seller including orders, and you agree that to the
maximum extent permitted by law, the Seller will not be liable for any losses which the Client suffers as a
result of online-ordering not being available or for delays or errors in transmitting orders;
(e) when making a transaction through the website, the Client’s information will pass through a secure server
using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by the
Seller and/or displayed on the website. The encryption process ensures that the Client’s information cannot be
read by or altered by outside influences; and
(f) if the Client is not the cardholder for any credit card being used to pay for the Goods, the Seller shall be
entitled to reasonably assume that the Client has received permission from the cardholder for use of the credit
card for the transaction.
5.2 The Seller reserves the right to terminate the Client’s order if it learns that you have provided false or misleading
information, interfered with other users or the administration of the Seller’s business, or violated these terms and
conditions.
6. Price and Payment
6.1 At the Seller’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Seller to the Client; or
(b) the Seller’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or
otherwise for a period of thirty (30) days.
6.2 The Seller reserves the right to change the Price:
(a) if a variation to the Goods which are to supplied is requested; or
(b) if during the course of the Services, the Goods cease to be available from the Seller’s third-party suppliers,
then the Seller reserves the right to provide alternative Goods, subject to prior confirmation and agreement of
both parties; or
(c) in the event of increases to the Seller 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 and/or
international freight and insurance charges) which are beyond the Seller’s control.
6.3 Variations will be charged for on the basis of the Seller’s quotation, and will be detailed in writing, and shown as
variations on the Seller’s invoice. The Client shall be required to respond to any variation submitted by the Seller
AMS Doors Timber and Hardware – Terms & Conditions of Trade
within ten (10) working days. Failure to do so will entitle the Seller 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.
6.4 At the Seller’s sole discretion, a non-refundable deposit may be required.
6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s
determined by the Seller, which may be:
(a) on or before Delivery of the Goods;
(b) by way of instalments/progress payments in accordance with the Seller’s payment schedule;
(c) thirty (30) days following the date specified on any invoice or other form as being the date for payment; or
(d) 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 Seller.
6.6 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction),
or by any other method as agreed to between the Client and the Seller.
6.7 The Seller may in its discretion allocate any payment received from the Client towards any invoice that the Seller
determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Seller
may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the
Seller, payment will be deemed to be allocated in such manner as preserves the maximum value of the Seller’s
Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.8 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 nor to withhold payment of any invoice because part of that invoice is in dispute.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Seller
an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement
for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the
same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes
and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at the Seller’s address; or
(b) the Seller (or the Seller’s nominated carrier) delivers the Goods to the Client’s nominated address even if the
Client is not present at the address.
7.2 At the Seller’s sole discretion, the cost of Delivery is in addition to the Price.
7.3 The Seller 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.
7.4 Any time specified by the Seller for Delivery of the Goods is an estimate only. The Client must take Delivery by
receipt or collection of the Goods whenever they are tendered for Delivery. The Seller will not be liable for any
loss or damage incurred by the Client as a result of Delivery being late. 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 redelivery
and/or storage.
8. Risk
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on
or before Delivery.
8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, the
Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and
conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the
need for any person dealing with the Seller to make further enquiries.
8.3 If the Client requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods
to an unattended location, then such Goods shall be left at the Client’s sole risk.
8.4 In the event that the Client provides the Seller with any information and/or measurements relating to the supply of
the Goods, the Seller shall be entitled to rely on the accuracy of any such information provided by the Client. The
Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate,
the Seller accepts no responsibility for any loss, damages, or costs however resulting from the supply of
inaccurate measurements or other information.
8.5 The Client acknowledges and agrees that timber should not be stored in a builder’s shed or under plastic cover
exposed to direct sunlight as this will limit air circulation and expose the timber to extreme high temperatures. Any
protective cover should not have the effect of trapping rising moisture as it will defeat the purpose of
acclimatisation.
8.6 The Client acknowledges and accepts that Goods supplied may:
(a) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures,
occlusions, lines, indentations and may fade or change colour over time;
(b) expand, contract or distort as a result of exposure to heat, cold, weather;
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
8.7 Whilst the Seller will make every effort to match sales samples to the finished Goods the Seller accepts no liability
whatsoever where such samples differ to the finished Goods supplied.
8.8 The Seller shall not be liable whatsoever for:
(a) any unpaid claims by the Client to the Seller by the due date unless subject to the CCA; or
(b) any loss or damage to the Goods/Services that is caused by any other tradesmen during and after the
completion of the Services; or
(c) delays caused by any other third-party suppliers/contractors that impacts on the provision of the Services by
the Seller; or
(d) delays caused by the manufacturer of the Goods; or
(e) delays caused due to inclement weather or other natural disasters as per clause 19.9; or
(f) materials and/or works supplied by the Client and/or any other third party; or
(g) delays, damages or cost incurred by the Seller through the Client’s failure to comply with this clause 8.8.
8.9 It shall be the Client’s responsibility to advise the Seller of any delays present. The Client must advise the Seller
in writing within seven (7) days prior to any liquidated damages taking place.
9. Title
9.1 The Seller and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Seller all amounts owing to the Seller; and
(b) the Client has met all of its other obligations to the Seller.
9.2 Receipt by the Seller 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.
9.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 9.1:
(a) the Client is only a bailee of the Goods and must return the Goods to the Seller on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Seller and must pay to the
Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary
course of business and for market value. If the Client sells, disposes or parts with possession of the Goods
then the Client must hold the proceeds of any such act on trust for the Seller and must pay or deliver the
proceeds to the Seller on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so
then the Client holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or
return the resulting product to the Seller as it so directs;
(e) the Client irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are
kept and recover possession of the Goods;
(f) the Seller may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any
interest in the Goods while they remain the property of the Seller;
(h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership
of the Goods has not passed to the Client.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the
meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms
and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all
Goods and/or collateral (account) – being a monetary obligation of the Client to the Seller for Services – that have
previously been supplied and that will be supplied in the future by the Seller to the Client.
10.3 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 Seller 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 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing
statement or financing change statement on the Personal Property Securities Register established by the
PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of
the Seller;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the
Goods and/or collateral (account) in favour of a third party without the prior written consent of the Seller;
(e) immediately advise the Seller 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.
10.4 The Seller 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.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the
PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by the Seller, the Client waives their right to receive a verification statement
in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by the Seller under clauses 10.3 to 10.5.
10.9 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these
terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1 In consideration of the Seller agreeing to supply the Goods, the Client charges all of its rights, title and interest
(whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either
now or in the future, to secure the performance by the Client of its obligations under these terms and conditions
(including, but not limited to, the payment of any money).
11.2 The Client indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs
on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
11.3 The Client irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful attorney/s
to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing
any document on the Client’s behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect all Goods on delivery (or the Services on completion) and must within seven (7) days of
delivery notify the Seller in writing of any evident defect/damage in any workmanship and/or Goods, shortage in
quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the
Goods/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification
the Client must allow the Seller to inspect the Goods or to review the Services provided. Where it is deemed that
the Goods/Services are defective the Client shall give the Seller access to rectify the defective Goods/Services
within the seven (7) day period. Unless subject to the CCA, in the event that the Client engages a third party
contractor to rectify the Goods/Services prior to notifying the Seller of the defects, the Client acknowledges and
agrees that the Client shall be responsible for the payment of any associated charges.
12.2 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).
12.3 The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the NonExcluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the
Seller makes no warranties or other representations under these terms and conditions including but not limited to
the quality or suitability of the Goods. The Seller’s liability in respect of these warranties is limited to the fullest
extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by
section 64A of Schedule 2.
12.6 If the Seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may
refund any money the Client has paid for the Goods.
12.7 If the Client is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the
Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Seller at the Seller’s
sole discretion;
(b) limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods;
(c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 12.1; and
(b) the Seller has agreed that the Goods are defective with evidence provided; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, the Seller shall not be liable for any defect or
damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become
apparent to a reasonably prudent operator or user;
(d) the workmanship is repaired, altered or overhauled without the Seller’s consent;
(e) the Client failing to follow any instructions or guidelines provided by the Seller;
(f) fair wear and tear, any accident, or act of God.
12.10 The Seller may in its absolute discretion accept non-defective Goods for return in which case the Seller may
require the Client to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any
freight costs.
12.11 Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the
Seller will only accept a return on the conditions imposed by that law.
12.12 Subject to clause 12.1, customised, or non-stocklist items or Goods made or ordered to the Client’s specifications
are not acceptable for credit or return.
13. Intellectual Property
13.1 Where the Seller has designed, drawn or developed Goods for the Client, then the copyright in any designs and
drawings and documents shall remain the property of the Seller. Under no circumstances may such designs,
drawings and documents be used without the express written approval of the Seller.
13.2 The Client warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to
infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to
indemnify the Seller against any action taken by a third party against the Seller in respect of any such
infringement.
13.3 The Client agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition,
any documents, designs, drawings or Goods which the Seller has created for the Client.
14. Default and Consequences of Default
14.1 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 Seller’s sole discretion such
interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes the Seller any money the Client shall indemnify the Seller from and against all costs and
disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration
fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).
14.3 Further to any other rights or remedies the Seller may have under this Contract, if a Client has made payment to
the Seller, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed
transaction, in addition to any further costs incurred by the Seller under this clause 14 where it can be proven that
such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
14.4 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 if:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to make
a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Seller;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement
with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
15. Cancellation
15.1 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) under these terms and conditions the Seller may suspend or
terminate the supply of Goods to the Client. 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.
15.2 The Seller may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any
time before the Goods are delivered by giving written notice to the Client. On giving such notice the Seller shall
repay to the Client any money paid by the Client for the Goods. The Seller shall not be liable for any loss or
damage whatsoever arising from such cancellation.
15.3 In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred
(whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss
of profits).
15.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not
be accepted once production has commenced, or an order has been placed.
16. Privacy Policy
16.1 All emails, documents, images or other recorded information held or used by the Seller is Personal Information,
as defined and referred to in clause 16.3, and therefore considered Confidential Information. The Seller
acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information
pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable
Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area
(“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”)
(collectively, “EU Data Privacy Laws”). The Seller acknowledges that in the event it becomes aware of any data
breaches and/or disclosure of the Client’s Personal Information, held by the Seller that may result in serious harm
to the Client, the Seller will notify the Client in accordance with the Act and/or the GDPR. Any release of such
Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved
by the Client by written consent, unless subject to an operation of law.
16.2 Notwithstanding clause 16.1, privacy limitations will extend to the Seller in respect of Cookies where the Client
utilises the Seller’s website to make enquiries. The Seller agrees to display reference to such Cookies and/or
similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the
collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Seller when the Seller sends an email to the Client, so the Seller may collect and
review that information (“collectively Personal Information”)
If the Client consents to the Seller’s use of Cookies on the Seller’s website and later wishes to withdraw that
consent, the Client may manage and control the Seller’s privacy controls via the Client’s web browser, including
removing Cookies by deleting them from the browser history when exiting the site.
16.3 The Client agrees that the Seller may exchange information about the Client with those credit providers and with
related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in
default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2)
years.
16.4 The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial
credit.
16.5 The Client agrees that personal credit information provided may be used and retained by the Seller for the
following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
16.6 The Seller may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
16.7 The information given to the CRB may include:
(a) Personal Information as outlined in 16.3 above;
(b) name of the credit provider and that the Seller is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of
commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are
overdue by more than sixty (60) days and for which written notice for request of payment has been made and
debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the
Seller has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of
payments);
(g) information that, in the opinion of the Seller, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars
($150).
16.8 The Client shall have the right to request (by e-mail) from the Seller:
(a) a copy of the Personal Information about the Client retained by the Seller and the right to request that the
Seller correct any incorrect Personal Information; and
(b) that the Seller does not disclose any Personal Information about the Client for the purpose of direct marketing.
16.9 The Seller will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required
unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in
accordance with the law.
16.10 The Client can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that
complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the
complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the
resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
17. Service of Notices
17.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on
receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
17.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by
the ordinary course of post, the notice would have been delivered.
18. Trusts
18.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of
any trust (“Trust”) then whether or not the Seller may have notice of the Trust, the Client covenants with the Seller
as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the
Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the
provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the
Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a
party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of the Seller (the Seller will not unreasonably withhold consent),
cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
19. General
19.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising
hereunder, shall be submitted to, and settled by, arbitration in accordance with the Institute of Arbitrators Australia
Rules for the Conduct of Commercial Arbitration.
19.2 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.
19.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New South
Wales, the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the
Sydney Courts in New South Wales.
19.4 Subject to clause 12, the Seller 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
Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no
circumstances shall exceed the Price of the Goods).
19.5 The Seller may licence and/or assign all or any part of its rights and/or obligations under this Contract without the
Client’s consent.
19.6 The Client cannot licence or assign without the written approval of the Seller.
19.7 The Seller may elect to subcontract out any part of the Services but shall not be relieved from any liability or
obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no
authority to give any instruction to any of the Seller’s sub-contractors without the authority of the Seller.
19.8 The Client agrees that the Seller may amend their general terms and conditions for subsequent future contracts
with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request
for the Seller to provide Goods to the Client.
19.9 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.
19.10 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.
