Trading terms and conditions
Effective: 31 August 2022
- All quotes are subject to these trading terms and conditions.
- Retention agreements will not be entered into for projects valued less than $50,000.
In these Trading Terms & Conditions the following defined terms have the following stated meanings:
Australian Consumer Law Guarantee means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any corresponding provisions of any State or Territory fair trading legislation or the Australian Securities and Investments Commission Act (2001) (Cth).
Company means Elbon Group of Companies Pty Ltd ACN 619 530 479, and its subsidiary Height Safety Engineers, all Related Body Corporate, and includes its employees and executives.
Conditions means these Trading Terms & Conditions.
Consequential Loss means any loss or damage arising from a breach of contract or agreement, tort, or any other basis in law or equity including, but without limitation to, loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss .of bargain, loss of access to markets, loss of goodwill, indirect or remote or unforeseeable loss, loss of business reputation, future reputation or publicity, wasted expenditure, any loss or gain for which restitution damages is capable of being awarded, or any similar loss which was not contemplated by the parties.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means the person or corporate entity with whom this contract is made, and any person or entity for whom any of the Services are performed.
Excluded Interest means any of the interests set out in section 8 of the PPSA or any interest that is not a Security Interest but encumbers the Goods.
Goods means any Goods supplied as part of the Goods and Services.
Goods and services means the Goods and Services supplied by the Company to the Customer, and includes the provision of training courses; the installation of safe height access systems and cooling tower maintenance access systems; consulting, advice and analysis services; and the sale of personal protective equipment.
Gross Negligence means behaviour that is a serious breach of duty in that the behaviour fails to take care with respect to an obvious risk and behaviour that is carried out with reckless indifference to the outcome.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999.
GST Rate means the rate of GST under the GST Law.
Input Tax Credit has the same meaning as Input Tax Credit under the GST Law.
Intellectual Property means all present and future rights throughout the world conferred by statute, common law, equity, or any corresponding law in or in relation to copyright, trademarks, designs, inventions, drawings, computer programs, trade secrets, know-how, patents, circuit layouts, business and domain names, confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literacy, or artistic fields whether registrable, registered or patentable of the Company.
PPSA means the Personal Property Securities Act 2009 (Cth).
Related Body Corporate has the same meaning as under the Corporations Act.
Security Interest has the same meaning as under the PPSA.
Site means the place where the Company will supply the Goods or Services for the Customer.
Sub-contractors means any other person who pursuant to a contract or arrangement with any other person (whether or not the Company) provides or agrees to provide the Goods and Services or any part of the Goods and Services.
Supply means the same as in the GST Law.
Taxable Supply means the same as in the GST Law.
Tax Invoice means the same as in the GST Law.
2.1 These Conditions apply to all Goods and Services provided by the Company to the Customer and prevail over any terms and conditions provided by the Customer.
3. Governing Law and Jurisdiction
3.1 These Conditions and any collateral agreements made by the Company with the Customer shall be governed and construed according to the laws of New South Wales and shall be subject to the exclusive jurisdiction of the courts of New South Wales.
4. Acceptance of Trading Terms & Conditions
4.1 The Customer acknowledges and agrees that it has received and understands these Conditions. By instructing the Company to perform the Services, the Customer will be bound by the Conditions of the Company.
4.2 These Conditions may only be amended by the Company, and any such amendment must be in writing by an authorised representative of the Company.
4.3 If there is any inconsistency between these Conditions and any other document, these Conditions shall prevail.
5. Payment and recovery of Fees
5.1 The Company shall provide a quotation to the Customer, which will specify the work required to be completed and an estimate of the Company’s charge for the performance of the work.
5.2 Quotations as to Fees and other charges are given on the basis of immediate acceptance and subject to the right of withdrawal or revision by the Company. All quotations shall be valid for the period stated in the Quotation or if no period is stated, 30 days.
5.3 The Company may request a deposit from the Customer, as specified in the quotation. The deposit may be 20% of the price.
5.4 The Company need not commence work until the quotation has been accepted in writing by the Customer and the required deposit paid to the Company.
5.5 The Company shall under no circumstances be precluded from raising a debit in respect of any fee or disbursements lawfully due to it, notwithstanding that a previous debit or debits (whether excluding or partly including the items now sought to be charged) had been raised and whether or not any notice was given that further debits were to follow.
5.6 All amounts due to the Company in Australia are payable in Australian dollars. The Company is entitled to charge a currency conversion premium when converting receivables into Australian currency.
5.7 The Customer agrees that the Fees will be paid within 14 days of the date of an invoice statement or as otherwise determined by the Company.
5.8 If any amounts payable or due under any agreement between the Company and the Customer are not made within 7 days of the due date, the Customer will be in default and without limiting any other rights of the Company, the Customer shall pay to the Company, by way of liquidated damages, interest to be calculated at the rate being 2% above the Cash Rate Target fixed by the Reserve Bank of Australia on the amount outstanding calculated from the due date until payment is made in full. The Company may take any legal proceedings to recover amounts owing pursuant to these Conditions.
5.9 The Company reserves the right to offset any amounts receivable from the Customer against any amounts payable to that Customer or any company affiliated with the Customer or any Related Body Corporate of the Customer. This right exists irrespective of the date the liability has been created or debt incurred with the Company.
5.10 If the Customer is in breach of these Conditions, including the payment provisions, the Company may suspend or terminate the agreement and suspend the supply of Goods and Services to the Customer.
5.11 The Customer shall indemnify the Company for all costs and disbursements incurred by the Company in the Company’s enforcing of any provision of these Conditions, including the costs of the Company incurred in recovering any payments due.
6. Variations and increase in price
6.1 The price of the Goods or Services may change if a Variation to the scope of works or Goods or Services is requested by the Customer.
6.2 The Company may increase the price of Goods or Services if additional Goods or Services are required due to the discovery of otherwise previously hidden or unidentifiable circumstances or conditions. Such circumstances or conditions include but are not limited to; poor weather conditions; difficulties accessing the Site; the availability of machinery; safety considerations; prerequisite work by a third-party not being completed; hidden pipes and wiring in walls; and additional materials being required due to amended design layout requirements.
6.3 The Company may increase the price of Goods or Services to the Customer in the event that the Company’s cost of materials or labour increase for reasons reasonably beyond the Company’s control.
7. Customer acceptance, obligations and warranties
7.1 The Customer shall provide the Company with all requested and necessary information and details including but not limited to, measurements, plans, specifications and drawings.
7.2 The Customer shall indemnify the Company for any additional cost, loss or damage, for any variation in price caused by inaccurate information provided to the Company.
7.3 The Customer shall indemnify the Company for the costs of Goods if the Company orders Goods based upon inaccurate information and those Goods ordered are not suitable for the works.
7.4 The Customer shall obtain all necessary permits, approvals and certificates.
7.5 The Customer shall advise the Company whether any works are to be performed on bush fire prone land, and if so, the bush fire attack level (BAL).
7.6 The Customer warrants that the Site will comply with all legislation, regulations, and permits, including all Work Health and Safety laws. The Customer warrants that it will comply with all legislation, regulation and permits relating to asbestos/ hazardous material.
7.7 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 cables) are of suitable capacity and are fit for purpose. If the Company decides that it is not safe to commence or continue work, due to, but not limited to, the discovery of asbestos, defective or unsafe wiring, or dangerous access to roof, then the Company may delay the commencement of work, or stop work, until the Customer has rectified the situation and made it safe for the Company to commence or continue work.
7.8 The placement of an order, or the acceptance of any Goods, will be taken as confirmation that the Customer has checked, approved, and accepted any related system layout designs as correct, and that the Goods are suitable. The Company may charge additional costs to the Customer for any further design changes.
8.1 The Company as agent for the Customer may contract either in its own name as principal or as agent for the Customer with any Sub-contractor for the performance of all or any part of the Services pursuant to or ancillary to these Conditions.
8.2 Any such contract may be made upon the terms of contract used by the Sub- contractor with whom the Company may contract for the Services and may be made upon the terms and subject to the conditions of any special contract which the Sub- contractor may in any particular case require, including in every case any term that the Sub-contractor may employ any person, firm or company for performance of the Services so contracted for.
9. Delivery and site access
9.1 The Customer must ensure that the Company has clear and unimpeded access to the Site until the work has been completed and the Company paid in full.
9.2 The Customer shall indemnify the Company for all additional costs, charges, penalties or other imposts if the completion of the works is delayed due to the Company not having clear and unimpeded access to the Site.
9.3 Delivery of the Goods shall be made to the Customer’s nominated address, and the Customer shall make all necessary arrangements to take safe delivery. The Customer may nominate a third-party address for delivery of Goods and in that case delivery to that third-party is deemed delivery to the Customer.
9.4 The Company is deemed to have satisfied its delivery obligations upon delivering the Goods and obtaining from the Customer or third-party, a receipt or signed delivery docket. By signing a receipt or delivery docket the Customer warrants that the Goods were delivered undamaged and in good and clean condition.
9.5 The failure of the Company to deliver the Goods shall not entitle the Customer to repudiate the agreement. The Contractor shall not be liable for any loss or damage due to the failure to deliver the Goods promptly or at all.
9.6 The Customer shall indemnify the Company for any costs, loss or damage incurred by the Company should Site access be not available and as a consequence the Company is unable to deliver the Goods.
10. Retention of title
10.1 Title in any and all Goods shall remain with the Company until the Customer has paid in full all monies owing under any Tax Invoice issued by the Company, including GST, notwithstanding the Goods may have been delivered or installed. If the Customer has on sold the Goods, the Customer shall hold the proceeds of such sale upon trust for the Company and shall account to the Company for those monies.
10.2 If payment by the Customer is later voided by law, then that payment shall be deemed to have not discharged the Company’s title in the Goods, nor the Customer’s indebtedness to the Company.
10.3 Until such time that payment has been made in full, the Customer is in possession of the Goods solely as bailee, and during that time the Customer must not encumber or otherwise charge the Goods and the Customer is liable to the Company for any loss or damage however caused to the Goods following delivery and or installation of the Goods.
10.4 If the Customer fails to pay Tax Invoices issued by the Company for Goods and Services, the Company may remove or repossess any Goods from the Customer and sell or dispose of the Goods. The proceeds of any sale shall be applied towards the Customer’s indebtedness to the Company. The Company shall not be liable to the Customer or to any person or entity claiming through or on behalf of the Customer.
11. Notification of Claim
11.1 Any claim for loss or damage must be notified in writing to the Company within seven (7) days of delivery of the Goods or Services.
11.2 If no claim for loss or damage is made within 7 days of delivery of the Goods or Services then the Customer is deemed to have accepted the Goods and Services and to the fullest extent permitted by law, waives any claim for loss or damage against the Company in respect of the Goods or Services.
11.3 The Company shall be discharged from all liability whatsoever in connection with the provision of the Goods or Services unless legal proceedings are commenced and served upon the Company within nine (9) months of the provision of the Goods and Services.
11.4 The Company shall not be liable for any loss or damage as a result of:
- (a) The Customer failing to properly maintain the Goods;
- (b) The Customer using the Goods for any purpose other than that for which the Goods were designed;
- (c) The Customer continuing to use the Goods after any defect became apparent, or should have become apparent;
- (d) The Customer failing to follow any instructions or guidelines provided by the Company or the manufacturer of the Goods; and
- (e) Fair wear and tear.
12. Liability – Company not Liable
12.1 To the full extent permitted by law, the Company, its servants and agents will have no liability whatsoever to the Customer, whether in tort, contract, bailment, or otherwise, unless such is solely caused by, and attributable to, the Gross Negligence of the Company in provision of the Goods or Services, and the Customer shall indemnify the Company in respect of any claims made by third parties concerning the provision of the Goods or Services by the Company, in connection with or arising out of, but not limited to:
- (a) the Company’s provision of the Services;
- (b) any loss or damage caused directly or indirectly by the Customer by breach of these Conditions;
- (c) losses or damage incurred by the Company due to a breach by the Customer of any of the warranties in these Conditions.
12.2 The nature of the indemnity provided by the Customer pursuant to these Conditions shall include, without limitation, all penalties, liabilities, all losses (including indirect and Consequential Loss) and damages assessed against the Company and its officers and employees, together with all legal costs incurred by the Company (calculated on a solicitor/client basis).
12.4 Except as required by law, the Company shall not be responsible in negligence or contract or otherwise for loss, damage, costs, fines or penalties incurred by the Customer or any other person resulting from or arising out of or in connection with any quotation, advice, statement, representation or information given or made by or on behalf of the Company to the Customer or others.
12.5 In all cases where liability of the Company has not been excluded, whether by these Conditions, by statute or otherwise, the liability of the Company whatsoever and howsoever arising is limited to:
- (a) Australian $100 or the value of the Goods or Services the subject of the Contract at the time the Goods or Services were received by the Customer, whichever is the lesser; or
- (b) in the case of a breach of an Australian Consumer Law Guarantee, the payment of the cost of having the Goods or Services supplied again.
12.6 The Customer’s indemnity will include any reasonable costs, either administrative or legal, incurred by the Company in recovering from the Customer any amounts owing, pursuant to this indemnity.
12.7 The Company shall not be liable for any loss or damage to the Customer for any periodical inspection required at law over Goods, if the Customer fails to request that the Company conduct the required inspection.
13. Indirect Loss
13.1 Neither the Company nor the Customer shall be liable for any loss suffered by the other party in connection with the Goods or Services that is an indirect or Consequential Loss including:
- (a) losses that are purely financial or economic losses;
- (b) loss of opportunity;
- (c) losses in connection with contracts, agreements, or understandings the Customer has with third parties; and
- (d) any other losses whatsoever that are consequential in nature.
14. Indemnity by Customer
14.1 The Customer warrants:
- (a) that no claim or allegation shall be made, whether by the Customer or any other person who is or who may subsequently be interested in the provision of the Goods or Services, against any person (other than the Company) by whom (whether it is a Subcontractor, principal, employer servant, agent or otherwise) the Goods or Services or any part of the Goods or Services are or is provided which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising in connection with the provision of the Goods or Services and if such claim or allegation should nevertheless be made to indemnify the Company and the person against whom such claim or allegation is made against the consequences of such claim or allegation. For the purpose of this Clause 14.1, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract; and
- (b) to indemnify the Company against any claim or allegation made against it by any person in connection with any liability, arising out of or relating to the provision of the Goods or Services, supplied under the primary contract or any other contractual arrangement.
15. Himalaya Clause
15.1 Every exemption, limitation, condition and liberty in these Trading Conditions and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled in accordance with these Conditions shall also be available and shall extend to protect:
- (a) all Subcontractors;
- (b) every servant or agent of the Company or of a Subcontractor;
- (c) every other person (other than the Company) by whom the Goods or Services or any part of the Goods or Services are or is provided; and
- (d) all persons who are or may be vicariously liable for the acts or omissions of any persons falling within paragraphs (a), (b) or (c) herein:
and, for the purpose of this clause, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract.
16.1 The risk in the Goods shall pass to the Customer upon delivery to the Customer, or to a third party nominated by the Customer, and/ or installation of the Goods at the Site.
17. Deviation re Method of Services
17.1 The Customer authorises any deviation from the usual manner in which the Goods or Services are provided which may in the absolute discretion of the Company be deemed reasonable or necessary in the circumstances.
17.2 If the Customer expressly or impliedly instructs the Company to use or it is expressly or impliedly agreed that the Company will use a particular method of providing the Goods or Services, the Company will give priority to that method, however its adoption remains at the sole discretion of the Company and the Customer hereby authorises the Company to provide the Goods or Services by another method.
18.1 The Company, its servants or agents shall have a Particular Possessory Lien and a General Possessory Lien on any Goods and documents relating to those Goods or Services, and a right to sell the Goods and documents, whether by public or private sale or auction, without notice, for all sums payable by the Customer or the Customer’s principals, servants or agents to the Company, for any and all debts, charges, expenses or other sums due and owing by the Customer or the Customer’s principals, servants or agents.
18.2 In addition, all costs and expenses of exercising the Company’s right of lien, including the sale of the Goods and reasonable legal fees, shall be covered by the lien.
18.3 The lien, and all rights granted herein shall survive delivery of the Goods and the Company shall be entitled to retain the proceeds of sale of the Goods in relation to any and all outstanding amounts and debt referred to herein. In the circumstance that the proceeds of sale are not sufficient to cover all amounts payable to the Company, the Company retains the right to recover any deficit from the Customer. The Company acts as principal and not as agent and is not the trustee of the power of sale when the Company sells or otherwise disposes of Goods and any documents.
18.4 From the time the Company, its servants or agents, receive the Goods into its custody, the Goods and all of the Customer’s present and future rights in relation to the Goods and any documents relating to those Goods, are subject to a continuing security interest in favour of the Company for the payment of all the amounts owed and without limitation for any and all debts, charges, expenses or any other sums due and owing by the Customer or the Customer’s principals, servants or agents. Further, the continuing security interest shall cover all the costs and expenses of exercising the lien, including the costs of a public or private sale or auction, including legal and administration costs.
19. Force majeure
19.1 The Company shall not be liable to the Customer for any breach or failure to perform its obligations under these Conditions or for any damage or loss to Goods and Services resulting from one of the following: act of God; act of war; act of terrorism; act of public enemies; pandemic (including circumstances arising from Covid-19), epidemic or other major public health emergency; arrest or restraint of princes, rulers or people, or seizure under legal process; strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general; riots and civil commotions; or any other cause arising beyond the reasonable control of the Company, without the actual fault or privity of the Company and without the actual fault or privity of the agents or servants of the Company.
19.2 If the occurrence of any event contemplated herein causes a delay of over 5 Business Days in any obligation of the Company, then the provision of Services may be terminated by notice in writing by either party to the other party. However, all costs, charges and expenses already incurred by the Company prior to the termination or arising in connection with the disposal or return of the Goods shall be paid by the Customer.
20. Security, caveat and Charge
20.1 The Customer Charges all equitable and legal property present or future of the Customer in respect of any and all monies that might be owing by the Customer to the Company, and hereby authorises the Company or its solicitors to execute any consent form as its attorney for the purposes of registering a caveat over any real property owned by the Customer.
21. Director’s Guarantee
21.1 At all times if the Customer is a corporate entity under the Corporations Act, the directors and shareholders of that corporate entity will guarantee the Debts, undertake to perform the obligations of the Customer and indemnify and keep indemnified the Company against the Debts.
21.2 The Customer shall ensure that its directors and shareholders will sign any other documents required by the Company to evidence and confirm any guarantee, undertaking and indemnity.
22. Termination of agreement
22.1 If the Customer:
- (a) fails to pay a progress payment or any tax Invoice of the Company;
- (b) goes into liquidation or receivership or is otherwise without full capacity,
- (c) denies access to the Site to the Company or the Company’s employees or sub-contractors so as to prevent the work from proceeding, or
- (d) fails to perform any work or supply materials which prevents the Company from continuing with the works, or otherwise obstructs the Company from performing the works,
- (e) The Company may, where such default can be remedied, notify the Customer in writing that unless the default is remedied within 5 business days, or such longer period as may be specified by the Company, the Company may terminate any agreement with the Customer.
22.2 Unless the Customer complies with the Company’s request within the time allowed, or if the default is unable to be remedied, the Company may terminate the Agreement by giving written notice to the Customer.
22.3 Should the Company terminate the agreement under this clause, the Company may remove from the Site and retain all materials, fittings and equipment supplied by the Company and the Company will be entitled to recover from the Customer all losses and expenses arising from the termination of the agreement.
22.4 If the Customer cancels any agreement, the Customer shall reimburse the Company for any and all costs, expenses, damage or loss incurred by the Company by virtue of that cancellation.
23.1 The Customer acknowledges that the Company shall have a Security Interest which attaches over any Goods which are the subject of the Goods and Services and in the Company’s possession. The Customer acknowledges and consents to the registration and perfection of the interest set out in this subclause for the purposes of the PPSA.
23.2 The Customer warrants that it has rights in the Goods and the power to transfer rights in the Goods to the Company.
23.3 The Customer warrants that it has not, and that it will not grant any other authority in respect of the Goods and Services which the Company has been granted authority.
23.4 The Customer must not grant any other person a Security Interest in respect of the Goods.
23.5 The Customer must not allow an Excluded Interest to exist over the Goods.
23.6 To the maximum extent permitted by law, if the PPSA applies, the Customer irrevocably waives any rights the Customer may have to:
- (i) receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;
- (ii) redeem the Assets under section 142 of the PPSA;
- (iii) reinstate these Trading Conditions under section 153 of the PPSA; and
- (iv) receive a verification statement (as defined in the PPSA).
23.7 The Customer agrees to do anything (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed) which the Company asks and considers necessary for the purposes of:
- (v) ensuring that a Security Interest is created under these Trading Conditions is enforceable, perfected and otherwise effective; or
- (vi) enabling the Company to apply for any registration, or give any notification, in connection with a Security Interest created under these Trading Conditions so that the Security Interest has the priority required by the Company,
including anything the Company reasonably asks the Customer to do in connection with the PPSA.
23.8 The Customer will immediately inform the Company if an Insolvency Event occurs with respect to the Customer. The Customer shall not change its name or other details without first notifying the Company in writing with at least 14 days’ notice before such change takes effect.
24. Intellectual property
24.1 The Customer acknowledges that the Intellectual Property in all works of the Company remain the property of the Company.
24.2 The Customer warrants that all designs, specifications and instructions provided to the Company will not cause the Company to infringe any Intellectual Property of another entity.
24.3 The Customer shall indemnify the Company against any claim made by a third-party for any infringement by the Company of Intellectual Property owned by another entity.
25. Australian Consumer Law
25.1 Notwithstanding anything herein contained, any Australian Consumer Law Guarantee that applies to the Services are not excluded. To the extent permitted by law, the liability of the Company for breach of an Australian Consumer Law Guarantee is limited to the payment of the cost of having the relevant Services supplied again.
26.1 This clause applies if the Company is or may become liable to pay GST in relation to any Supply under these Trading Conditions.
26.2 Unless otherwise stated, all charges quoted are exclusive of GST. In addition to such charges, the Customer must pay GST on the Taxable Supply to the Company of an amount equal to the GST exclusive consideration multiplied by the GST Rate.
26.3 GST is payable by the Customer without any deduction or set-off for any other amount at the same time as the GST exclusive consideration is payable.
26.4 The Company shall provide to the Customer a Tax Invoice to enable the Customer to claim an Input Tax Credit.
27. Privacy Act and credit information
27.1 The Company may obtain from a credit reporting body a credit report containing personal credit information (e.g., name, address, date of birth, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Company.
27.2 The Company may exchange information about the Customer with a credit reporting provider and with Related Body Corporates for the following purposes:
- (a) to assess the Customers application for credit;
- (b) to notify other credit providers of a default by the Customer;
- (c) to exchange information with other credit providers as to the status of this credit account where the Customer is in default with other credit providers; and
- (d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
27.3 The Company may hold personal credit information of the Customer and may use that information for the following purposes:
- (a) to assess future credit worthiness;
- (b) to analyse, verify, or check the Customer’s credit, payment or status in relation to the provision of goods; and
- (c) to enable and assist in the collection of amounts outstanding in relation to any goods.
27.4 The Company may provide information about the Customer to a credit reporting body for the following purposes:
- (a) to obtain a consumer credit report;
- ((b) allow the credit reporting body to create or maintain a credit information file about the Customer including credit history.
27.5 The information given to the credit reporting body may include:
- (a) personal information;
- (b) the name of the credit provider and that the Company is a current credit provider to the Customer;
- (c) whether the credit provider is a licensee;
- (d) the type of consumer credit;
- (e) details concerning the Customer’s application for credit or commercial credit;
- (f) advice of consumer credit defaults, overdue accounts, loan repayments or
outstanding monies which are overdue by more than 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 Company has been paid or otherwise discharged;
27.7 The Customer may request from the Company:
- (a) a copy of the information about the Customer retained by the Company and to correct any incorrect information held by the Company.
27.8 The Customer may request that the Company destroy personal information held by the Company and upon request being received the Company shall destroy said information if it is no longer required by the Company. The Company shall not destroy said information if that information is required to be held by the Company in order to fulfill the obligations of any agreement with the Company or is required to be maintained and/or stored in accordance with laws.
27.9 The Customer may lodge a privacy complaint with the Company. The Company will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to resolve the matter within 30 days. In the event that the Customer is not satisfied with the resolution provided the Customer may lodge a complaint with the Information Commissioner at www.oaic.gov.au.
28. Security of Payment legislation
28.1 The Building and Construction Industry Security of Payment Act 1999 (NSW), and equivalent legislation in other States and Territories, may apply to construction work, as defined in the legislation, undertaken by the Company.
28.2 The Company may apply and use the Building and Construction Industry Security of Payment Act 1999 (NSW), and equivalent legislation in other States and Territories, to recover any payments due to the Company.
29. Dispute resolution
29.1 Notwithstanding the Company’s rights under the Building and Construction Industry Security of Payment Act 1999 (NSW), and equivalent legislation in other States and Territories, if a dispute arises between the parties, the complainant must not commence any court or arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it has first complied with this clause:
The complainant must inform the respondent in writing of the following:
- (i) The nature of the dispute;
- (ii) The outcome the complainant requires; and
- (iii) The action the complainant believes will settle the dispute.
(b) Endeavour to resolve dispute
On receipt of the complaint by the respondent, both parties will make every effort to resolve the dispute by mutual negotiation within 14 business days.
Should any dispute not be able to be resolved under 29.1(a) or (b) above, then this clause 29.1(c) shall apply.
Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Arbitration Rules.
- (i) The seat of arbitration shall be Sydney, Australia;
- (ii) The language of the arbitration shall be English; and
- (iii) The number of arbitrators shall be one.
(d) Survival of this clause
This clause survives termination of any contract or agreement between the Company and the Customer.
30.1 A right or power is not waived solely because the party entitled to exercise that right or power does not do so.
30.2 A single exercise of a right or power will not preclude any other or further exercise of that right or power, or of any other right or power.
30.3 A right or power may be waived only in writing, signed by the party to be bound by the waiver.
31. Governing law and jurisdiction
31.1 These Conditions, and all contracts and agreements entered into by the Company and the Customer, are governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.
32.1 Any provision in these Conditions which a Court of competent jurisdiction holds is invalid or unenforceable must be read down if possible, so as to be valid and enforceable.
32.2 If any provision is unable to be read down, then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of the Conditions.