IN CONSIDERATION of Live Electrical And Air Conditioning Pty Ltd ACN 617 564 468 (hereinafter referred to as “THE CONTRACTOR”) providing commercial credit facilities to the party completing the application (hereinafter referred to as “the Client”) annexed to these conditions: 

1. (i) “THE CONTRACTOR” means Live Electrical And Air Conditioning Pty Ltd ACN 617 564 468, its successors and assigns or any person acting on behalf of and with the authority of Live Electrical And Air Conditioning Pty Ltd ACN 617 564 468. 
2. (ii) The Client acknowledges and agrees that the following applies to and forms part of any contract for the supply of Services and/or Goods provided by THE CONTRACTOR and that these General Terms and Conditions take precedence over any terms and conditions which may be contained in any document provided by the Client. Any request from the Client to THE CONTRACTOR for the supply of Services and/or Goods shall constitute acceptance of these general terms and conditions. 
3. (iii) The Client acknowledges that where the Client consists of more than one party or entity, liability shall be joint and several. 
4. (iv) These terms and conditions, including any Credit Limits set by THE CONTRACTOR, are effective from the date of acceptance by the Client and may be amended or superseded from time to time by notice given by THE CONTRACTOR by any means. Unless or except specifically excluded herein, THE CONTRACTOR and the Client retain any rights and remedies available to them in any prior or pre-existing agreement. 
5. (v) “Services” means all Services and/or Goods supplied by THE CONTRACTOR to the Client, or ordered by the Client but not yet supplied, and includes Services and/or Goods described on any quotation, invoice, purchase order or any other document including any recommendations and advice and over which THE CONTRACTOR may intend to register a Security Interest and where the context so permits the terms “Services” and “Goods” shall be interchangeable for other. 
6. (vi) “Goods” shall include “Electrical System” and where the context so permits the terms “Services” and “Goods” shall be interchangeable for other. 
7. (vii) “Electrical System” means any or all of the equipment or components, whether electrical or otherwise, that THE CONTRACTOR supplies pursuant to a Client including any installation services provided to a Client in connection with or separately to the same. 
8. (viii) “Price” shall mean the cost of the Services and Goods as referred to in THE CONTRACTOR’s price lists, prepared quotations & or specific arrangements and shall be subject to change from time to time without notice. 

1 Personal Property Securities Act (2009) 

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

1.2 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 Services and/or Goods and/or collateral account – being a monetary obligation of the Client to THE CONTRACTOR for Services and/or Goods – that have previously been supplied and that will be supplied in the future by THE CONTRACTOR to the Client. 

1.3 The Client undertakes to: 

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which THE CONTRACTOR may reasonably require to: 

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; 

(ii) register any other document required to be registered by the PPSA; or 

(iii) correct a defect in a statement referred to in clause 1.3(a)(i) or 1.3(a)(ii); 

(b) indemnify, and upon demand reimburse, THE CONTRACTOR for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby; 

(c) not register a financing change statement in respect of a security interest without the prior written consent of THE CONTRACTOR; 

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of THE CONTRACTOR; 

(e) 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. 

1.4 THE CONTRACTOR and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions. 

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

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

1.7 Unless otherwise agreed to in writing by THE CONTRACTOR, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA. 

1.8 The Client shall unconditionally ratify any actions taken by THE CONTRACTOR under clauses 1.3 to 1.5. 

1.9 Subject to any express provisions to the contrary (including those contained in this clause 1) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. 

2 Privacy 

2.1 The Client 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 Client in relation to credit provided by THE CONTRACTOR. 

2.2 The Client agrees that THE CONTRACTOR 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. 

2.3 The Client consents to THE CONTRACTOR being given a consumer credit report to collect overdue payment on commercial credit. 

2.4 The Client 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): 

(a) the provision of Services; and/or 

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

2.5 THE CONTRACTOR 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. 

2.6 The information given to the CRB may include: 

(a) personal information as outlined in 2.1 above; 

(b) name of the credit provider and that THE CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR, the Client has committed a serious credit infringement; Australian Credit Risk Management 

(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150). 

2.7 The Client shall have the right to request (by e-mail) from THE CONTRACTOR: 

(a) a copy of the information about the Client retained by THE CONTRACTOR and the right to request that THE CONTRACTOR correct any incorrect information; and 

(b) that THE CONTRACTOR does not disclose any personal information about the Client for the purpose of direct marketing. 

2.8 THE CONTRACTOR 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. 

2.9 The Client 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 Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au. 

3 Price and Payment 

3.1 At THE CONTRACTOR’s sole discretion the Price shall be either: 

(a) as indicated on invoices provided by THE CONTRACTOR to the Client in respect of Services performed or Goods supplied; or 

(b) THE CONTRACTOR’s quoted Price (subject to clause 3.2) which shall be binding upon THE CONTRACTOR provided that the Client shall accept THE CONTRACTOR’s quotation in writing within thirty (30) days of the date of the quotation. 

3.2 THE CONTRACTOR reserves the right to change the Price: 

(a) if a variation to the Goods which are to be supplied and or installed is requested; or 

(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or 

(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations to site accessibility, availability of machinery, safety considerations, prerequisite work by a third party not completed or up to suitable standards, or hidden pipes, and wiring in walls, asbestos removal, deterioration of the worksite due to storm damage, etc) which are only discovered on commencement of the Services; or 

(d) in the event of increases to THE CONTRACTOR in the cost of labour or Goods which are beyond THE CONTRACTOR’s control. 

3.3 Variations will be charged for on the basis of THE CONTRACTOR’s quotation, and will be detailed in writing, and shown as variations on THE CONTRACTOR’s invoice. The Client shall be required to respond to any variation submitted by THE CONTRACTOR within seven (7) 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. 

3.4 At THE CONTRACTOR’s sole discretion a deposit of up to 50% of the quotation amount may be required prior to the manufacture of Goods and or the commencement of any Services. 

3.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by THE CONTRACTOR, which failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by THE CONTRACTOR. 

3.6 Payment may be made by, cash, bank cheque, electronic/on-line banking, credit card (attracting a 1% credit card processing fee) or by any other method as agreed to between the Client and THE CONTRACTOR. 

3.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by THE CONTRACTOR nor to withhold payment of any invoice because part of that invoice is in dispute. 

3.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to THE CONTRACTOR an amount equal to any GST THE CONTRACTOR must pay for any supply by THE CONTRACTOR under this or any other contract 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. 

4 Default and Consequences of Default 

4.1 THE CONTRACTOR reserves the right to suspend or withdraw credit facilities for any reason and at any time without notice 

4.2 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2.0% per calendar month and interest shall be calculated monthly at such a rate after as well as before any judgment. 

4.3 If the Client owes THE CONTRACTOR any money the Client shall indemnify THE CONTRACTOR from and against all costs and disbursements incurred by THE CONTRACTOR in recovering the debt including but not limited to internal administration fees, collection agent commission, legal costs on a solicitor and own Client basis, THE CONTRACTOR’s contract default fee, and bank dishonour fees. 

4.4 Further to any other rights or remedies THE CONTRACTOR may have under this contract, if a Client has made payment to THE CONTRACTOR, 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 CONTRACTOR under this clause 4 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. 

4.5 Without prejudice to THE CONTRACTOR’s other remedies at law THE CONTRACTOR shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to THE CONTRACTOR shall, whether or not due for payment, become immediately payable if: 

(a) any money payable to THE CONTRACTOR becomes overdue, or in THE CONTRACTOR’s opinion the Client will be unable to make a payment when it falls due; 

(b) the Client has exceeded any applicable credit limit provided by THE CONTRACTOR; 

(c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or 

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

5 Security and Charge 

5.1 In consideration of THE CONTRACTOR 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). 

5.2 The Client indemnifies THE CONTRACTOR from and against all THE CONTRACTOR’s costs and disbursements including legal costs on a solicitor and own Client basis incurred in exercising THE CONTRACTOR’s rights under this clause. 

5.3 The Client irrevocably appoints THE CONTRACTOR and each director of THE CONTRACTOR as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 5 including, but not limited to, signing any document on the Client’s behalf. 

6 Title 

6.1 THE CONTRACTOR and the Client agree that ownership of the Goods shall not pass until: 

(a) the Client has paid THE CONTRACTOR all amounts owing to THE CONTRACTOR; and 

(b) the Client has met all of its other obligations to THE CONTRACTOR. 

6.2 Receipt by THE CONTRACTOR of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised. 

6.3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 6.1: 

(a) the Client is only a bailee of the Goods and unless the Goods have become fixtures must return the Goods to THE CONTRACTOR on request. 

(b) the Client holds the benefit of the Client’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. 

(c) the production of these terms and conditions by THE CONTRACTOR shall be sufficient evidence of THE CONTRACTOR’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with THE CONTRACTOR to make further enquiries. Australian Credit Risk Management 

1. 8.1 The Customer authorises THE CONTRACTOR to apply in the Customer’s name for any grant, rebate or any other benefit (hereafter referred to as a Rebate) available, (if applicable) from the Commonwealth, State Government, or any local state Solar Feed Tariff Schemes in relation to the installation of a solar system and to receive payment of that Rebate on the Customer’s behalf. 
2. 8.2 The Customer agrees to sign any necessary documents, provide any necessary information and take any necessary action THE CONTRACTOR may require, to enable THE CONTRACTOR to obtain payment of a Rebate. 
3. 8.3 If THE CONTRACTOR receives payment of a Rebate, THE CONTRACTOR will apply that payment in or towards satisfaction of the Price. 
4. 8.4 THE CONTRACTOR is not responsible for any failure to obtain a Rebate and the Customer shall remain liable to THE CONTRACTOR for the whole of the Price and any other amounts due to THE CONTRACTOR which are not paid in full. 
5. 8.5 The Customer unconditionally assigns all Renewable Energy Certificates (RECs) and/or Smallscale Technology Certificates (STC’s) to which the Customer is entitled in respect of the Goods to THE CONTRACTOR unless otherwise negotiated. 
6. 8.6 The Customer acknowledges that, in certain circumstances, the Commonwealth Government, State Government or local government council (as applicable) may require repayment of a Rebate by the Customer and in such circumstances THE CONTRACTOR will have no liability to the Customer. 
7.  

(d) 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 CONTRACTOR and must pay or deliver the proceeds to THE CONTRACTOR on demand. 

(e) 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 CONTRACTOR and must sell, dispose of or return the resulting product to THE CONTRACTOR as it so directs. 

(f) unless the Goods have become fixtures the Client irrevocably authorises THE CONTRACTOR to enter any premises where THE CONTRACTOR believes the Goods are kept and recover possession of the Goods. 

(g) THE CONTRACTOR may recover possession of any Goods in transit whether or not delivery has occurred. 

(h) The Client will not charge or grant an encumbrance on Goods or give away any interest in the Goods while they remain the property of THE CONTRACTOR. 

(i) THE CONTRACTOR may start proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client. 

7 Risk 

7.1 If THE CONTRACTOR retains ownership of the Goods under clause 6 then where THE CONTRACTOR is supplying Goods only, all risk for the Goods shall immediately pass to the Client on delivery and the Client must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either; 

(a) the Client or the Client’s nominated carrier takes possession of the Goods at THE CONTRACTOR’s address; or 

(b) the Goods are delivered by THE CONTRACTOR or THE CONTRACTOR’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address). 

7.2 Notwithstanding the provisions of clause 7.1 if the Client specifically 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 always be left at the sole risk of the Client and it shall be the Client’s responsibility to ensure the Goods are insured adequately. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Client’s expense. 

7.3 In conjunction with the provisions of clause 7.2 the Client authorises THE CONTRACTOR right to claim insurance monies direct from the Client’s insurer. 

7.4 The plans, specifications (including CAD plans) and other information provided by the Client to THE CONTRACTOR are accurate. The Client acknowledges and agrees that in the event that any plans, specifications (including CAD plans) or information provided by the Client are inaccurate: 

(a) THE CONTRACTOR accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information; 

(b) THE CONTRACTOR is entitled to suspend or terminate the supply of Services and/or Goods to the Client if there is a material change to the scope of Services as a result of inaccurate plans, specifications or other information; 

(c) the Client shall be liable for THE CONTRACTOR’s costs of de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the site, upon the re-commencement of the Services at the site, if applicable; and 

(d) THE CONTRACTOR will not be liable to the Client for any loss or damage the Client suffers because THE CONTRACTOR has exercised its rights under this clause. 

7.5 THE CONTRACTOR shall not be liable whatsoever for any loss or damage to the Services and/or Goods (including, but not limited to, painted surfaces) that is caused by any other tradesmen. 

7.6 Where the Client has supplied Goods for THE CONTRACTOR to complete the Services, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the Goods. THE CONTRACTOR shall not be responsible for any defects in the Goods, any loss or damage howsoever arising from the use of Goods supplied by the Client. 

7.7 In the event that during the course of the Services THE CONTRACTOR discovers any: 

(a) undiscovered waste and/or hazardous Goods then THE CONTRACTOR reserves the right to halt all Services and immediately notify the Client. It shall be the responsibility of the Client to arrange the removal of all Goods. Should THE CONTRACTOR agree to remove such Goods for the Client then this shall be treated as a variation in accordance with clause 3.2 and shall be in addition to the Price; and 

(b) fossils, artefacts or any other remains of geological or archaeological interest or protected flora and/or fauna then THE CONTRACTOR reserves the right to halt all Services and immediately notify the Client. The Client accepts and agrees that all additional costs that may be incurred by THE CONTRACTOR as a result of any such delays shall be borne by the Client and shall be treated as a variation in accordance with clause 3.2 and shall be in addition to the Price. 

8 Rebates & Incentives 

9 Client Acknowledgements 

9.1 The Customer acknowledges that while THE CONTRACTOR may have provided information to it about the performance of solar electricity systems, the Customer acknowledges that THE CONTRACTOR shall not be deemed to have made any warranty or representation, express or implied, in relation to the Goods or Services, including whether or not they are suitable for a particular purpose (whether such purpose was made known to THE CONTRACTOR or not) unless the same is confirmed in writing. 

9.2 The Customer acknowledges that the Goods or Services are bought solely upon the Customer’s skill and judgement. 

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

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

9.5 The Customer acknowledges that they shall not be entitled to withhold any payment due under this contract because of any delay in the connection of, or the supply of electricity to the Goods by an electrical distributor or any other third party. 

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

9.7 If THE CONTRACTOR notifies the Customer that it intends to store onsite Goods, plant, equipment or tools to be used in performance of the Services, then the Customer shall designate an area for storage and shall take all reasonable precautions to protect such items against destruction, damage, or theft. In the event that such items are destroyed, damaged or stolen then the cost of replacement shall be added to the contract Price and will be shown as a variation as per clause 3.2. 

9.8 All quotations for Services in respect of other tradesmen will be treated strictly between the tradesmen and the Customer. The Customer agrees to indemnify THE CONTRACTOR from any damage caused by any other tradesmen during and after the completion of the Services. Australian Credit Risk Management 

10 Installation 

10.1 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 or dangerous access to roofing) that THE CONTRACTOR, its employees or contractors reasonably form the opinion that the Customer’s premises is 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 at its sole discretion agree to bring the premises up to a standard suitable for installation to proceed but all such works undertaken and any additional Goods supplied shall be treated as a variation and be charged for in addition to the Price. 

11 Compliance with Laws 

11.1 Both the Customer and THE CONTRACTOR agree that they will at all times ensure that they comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including works health and safety (WHS) laws relating to building/construction sites, and any other relevant safety standards or legislation, particularly those in relation to Asbestos/Hazardous Materials and the safe removal and disposal of the same. 

11.2 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. All of the cabling work will comply with the Australian and New Zealand Wiring standards. 

11.3 The Customer shall obtain (at the expense of the Customer) all licenses and approvals (including local Government approvals) that may be required for the Services, unless otherwise agreed. In the event that Seller is instructed to arrange said licences and/or permits on behalf of the Customer, then all associated such charges will be invoiced in accordance with clause Error! Reference source not found.. 

12 Delivery 

12.1 THE CONTRACTOR shall not be liable for any loss or damage, including consequential loss or damage, arising from delay in delivery or failure to deliver Goods, either whole or in part, due to circumstances beyond its control, or if delivery is expressly requested and the address, date and time is arranged, in the event of Goods being delivered to an unattended address. The Client acknowledges that it may be necessary for THE CONTRACTOR to leave Goods unattended at various times and that security for such Goods is the responsibility of the Client. 

12.2 All times and dates specified for delivery are an estimate only. 

12.3 The cost of delivery is included in the price as quoted. 

12.4 Goods will be delivered to the Client by THE CONTRACTOR’s nominated carrier. 

12.5 Delivery can be made by instalment. 

12.6 The cost of any re-delivery and or storage of Goods will be at the Client’s expense. 

13 Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA) 

13.1 The Client must inspect all Goods on delivery (or the Services on completion) 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 quotation. The Client must notify any other alleged defect in the Goods and/or Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow THE CONTRACTOR to inspect the Goods or to review the Services provided. 

13.2 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). 

13.3 THE CONTRACTOR acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. 

13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, THE CONTRACTOR makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods and/or Services. THE CONTRACTOR’s liability in respect of these warranties is limited to the fullest extent permitted by law. 

13.5 If the Client is a consumer within the meaning of the CCA, THE CONTRACTOR’s liability is limited to the extent permitted by section 64A of Schedule 2. 

13.6 If THE CONTRACTOR is required to replace any Goods under this clause or the CCA, but is unable to do so, THE CONTRACTOR may refund any money the Client has paid for the Goods. 

13.7 If THE CONTRACTOR is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then THE CONTRACTOR may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Goods which have been provided to the Client which were not defective. 

13.8 If the Client is not a consumer within the meaning of the CCA, THE CONTRACTOR’s liability for any defect or damage in the Goods is: 

(a) limited to the value of any express warranty or warranty card provided to the Client by THE CONTRACTOR at THE CONTRACTOR’s sole discretion; 

(b) limited to any warranty to which THE CONTRACTOR is entitled, if THE CONTRACTOR did not manufacture the Goods; 

(c) otherwise negated absolutely. 

13.9 Subject to this clause 13, returns will only be accepted provided that: 

(a) the Client has complied fully with the provisions of clause 9; and 

(b) THE CONTRACTOR has agreed that the Goods are defective; 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. 

13.10 Notwithstanding clauses 13.1 to 13.9 but subject to the CCA, THE CONTRACTOR shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: 

(a) the Client failing to properly maintain or store any Goods; 

(b) the Client using the Goods for any purpose other than that for which they were designed; 

(c) the Client continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; 

(d) interference with the Services by the Client or any third party without THE CONTRACTOR’s prior approval; 

(e) the Client failing to follow any instructions or guidelines provided by THE CONTRACTOR; 

(f) fair wear and tear, any accident, or act of God. 

13.11 THE CONTRACTOR may in its absolute discretion accept non-defective Goods for return in which case THE CONTRACTOR may require the Client to pay a re-stocking and handling fee of up to 10% of the value of the returned Goods plus any freight costs. 

13.12 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. 

14 Cancellation 

14.1 Without prejudice to any other remedies THE CONTRACTOR may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions THE CONTRACTOR may suspend or terminate the supply of Goods to the Client. 

14.2 THE CONTRACTOR will not be liable to the Client for any loss or damage the Client suffers because THE CONTRACTOR has exercised its rights under this clause. 

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

14.4 In the event that the Client cancels the delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by THE CONTRACTOR as a direct result of the cancellation (including, but not limited to, any loss of profits). Australian Credit Risk Management 

14.5 Cancellation of orders for manufactured 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 and a holding fee for such Goods will be charged to and payable by the Client. 

15 Intellectual Property 

15.1 Where THE CONTRACTOR 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 CONTRACTOR. Under no circumstances may such designs, drawings and documents be used without the express written approval of THE CONTRACTOR. 

15.2 The Client warrants that all designs, specifications or instructions given to THE CONTRACTOR will not cause THE CONTRACTOR to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify THE CONTRACTOR against any action taken by a third party against THE CONTRACTOR in respect of any such infringement. 

15.3 The Client agrees that THE CONTRACTOR may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which THE CONTRACTOR has created for the Client. 

16 Jurisdiction 

16.1 This agreement shall be construed in accordance with laws of the State of Queensland and, where applicable the Commonwealth of Australia and the Client submits to the non-exclusive jurisdiction of the courts in Queensland. 

16.2 THE CONTRACTOR shall have exclusive right to nominate the Court in which any legal action is to be commenced and conducted. 

17 Acceptance 

17.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Services. 

17.2 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 Client and THE CONTRACTOR. 

17.3 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. 

18 Errors and Omissions 

18.1 The Client 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): 

(a) resulting from an inadvertent mistake made by THE CONTRACTOR 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 CONTRACTOR in respect of the Services. 

18.2 In the event such an error and/or omission occurs in accordance with clause 18.1, and is not attributable to the negligence and/or willful misconduct of THE CONTRACTOR the Client shall not be entitled to treat this contract as repudiated nor render it invalid. 

19 Change in Control 

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

20 Provision of the Services 

20.1 Subject to clause 20.2 it is THE CONTRACTOR’s responsibility to ensure that the Services start as soon as it is reasonably possible. 

20.2 The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that THE CONTRACTOR claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond THE CONTRACTOR’s control, including but not limited to any failure by the Client to: 

(a) make a selection; or 

(b) have the site ready for the Services; or 

(c) notify THE CONTRACTOR that the site is ready. 

20.3 Any time specified by THE CONTRACTOR for delivery of the Services is an estimate only and THE CONTRACTOR will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that THE CONTRACTOR is unable to supply the Services as agreed solely due to any action or inaction of the Client, then THE CONTRACTOR shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date, and/or for storage of the Goods. 

21 Client Responsibilities 

21.1 The Client warrants that the information set out in the quotation is correct and that the Client has disclosed to THE CONTRACTOR all information relevant to THE CONTRACTOR providing the quotation. 

21.2 The Client agrees to follow the procedures as notified in writing by THE CONTRACTOR to the Client in using the Goods. 

21.3 The Client agrees to comply with all occupational health and safety and other laws, standards or guidelines in relation to the use of the Goods and the management of the Client’s premises; and shall be responsible for any damage to or destruction of the Goods caused by any person whatsoever other than the servants, agents or employees of THE CONTRACTOR. 

21.4 If THE CONTRACTOR notifies the Client that it intends to store onsite Goods, plant, equipment or tools to be used in performance of the Services, then the Client shall designate an area for storage and shall take all reasonable precautions to protect such items against destruction, damage, or theft. In the event that such items are destroyed, damaged or stoles then the cost of the replacement shall be added to the Price and will be shown as a variation pursuant to clause 3.3. 

22 Access 

22.1 The Client shall make their premises ready and available to receive the Goods on the delivery date. 

22.2 The Client shall ensure that THE CONTRACTOR has clear and free access to the site 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. 

22.3 The Client shall ensure that their premises are secured at all times and indemnify THE CONTRACTOR in relation to any loss, damage or theft of it’s equipment or the Goods (including where the same are left unattended at the Client’s premises overnight). 

23 Compliance with Laws 

23.1 The Client and THE CONTRACTOR shall comply with the provisions of all statutes, regulations and by laws of government, local and other public authorities that may be applicable to the Services, including, but not limited to, applicable Building Codes. 

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

23.3 The Client 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. 

24 Building and Construction Industry Security of Payments Act 2009 

24.1 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 Industry Fairness (Security of Payments) Act 2017 Qld may apply. 

24.2 Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the Building Industry Fairness (Security of Payments) Act 2017 Qld, except to the extent permitted by the Act where applicable. Australian Credit Risk Management 

25 Service of Notices 

25.1 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. 

25.2 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. 

26 Trusts 

26.1 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 CONTRACTOR may have notice of the Trust, the Client covenants with THE CONTRACTOR 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 CONTRACTOR (THE CONTRACTOR 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. 

27 Force Majeure 

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. 

28 General 

28.1 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. 

28.2 Subject to clause 19, THE CONTRACTOR shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by THE CONTRACTOR of these terms and conditions (alternatively THE CONTRACTOR ‘s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services). 

28.3 THE CONTRACTOR may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent. 

28.4 The Client cannot licence or assign without the written approval of THE CONTRACTOR. 

28.5 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 Client 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. 

28.6 The Client agrees that THE CONTRACTOR may amend these terms and conditions by notifying 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 CONTRACTOR to provide Services to the Client. 

28.7 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. 

28.8 Subject to the provisions the of Sale of Goods Act 1923 – sect 42 and notwithstanding that the property in the Goods may have passed to the Client, should the Client be indebted to THE CONTRACTOR any Goods left for repair as such has by implication of law: 

(a) a lien on the Goods for the price while THE CONTRACTOR is in possession of them, 

(b) in case of the insolvency of the Client a right of stopping the Goods in transit after THE CONTRACTOR has parted with the possession of them, 

(c) a right of resale as limited by this Act. 

I have read and understood this document and have been advised, and given opportunity, to seek independent legal advice. 

I warrant by signature attached or overleaf that the information given in support of this application is true and correct. I further warrant that I am authorised to sign on behalf of the Client and to bind the Client in contract. 

Completing a Credit Application does not infer that credit will be granted. 

The document must be completed in full, with no alterations or deletions. Any such alterations or deletions will void the application and a new form will need to be completed. 

Small Business applicants are advised that, should any of the Terms or Conditions contained herein be considered by them to be ‘unfair’, they should contact THE CONTRACTOR to further discuss and negotiate before proceeding with the application. 

THE CONTRACTOR reserves the right to refuse credit to any Applicant without explanation. 

THE CONTRACTOR reserves the right to suspend or withdraw credit facilities at any time without notice. Special Note: if the Client acts as, or is part of, a Trust/Nominee Entity then the provision of personal guarantee/s from the Trust Beneficiary/Beneficiaries is required to process this application.