1.               Definitions

1.1            “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Supplier to provide the Works 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.

1.2            “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.

1.3             “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.

1.4            “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 ordering from the 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.

1.5            “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

1.6            “Intended Use” means an associated building product (including but not limited to, paint products etc) and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Works.

1.7            “Non-Conforming Building Product” means associated building products that are regarded as Non-Conforming for an Intended Use if, when associated with the Works:

(a)   the product is not, or will not be, safe; or

(b)   does not, or will not, comply with the relevant regulatory provisions; or

(c)   the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.

1.8             “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Supplier and the Client in accordance with clause 6 below.

1.9            “Supplier” means John Pyrgiotakis T/A JP Bayside Painting, its successors and assigns or any person acting on behalf of and with the authority of John Pyrgiotakis T/A JP Bayside Painting.

1.10          “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Supplier to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.11         “Worksite” means the address nominated by the Client to which the Materials are to be supplied by the Supplier.

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 any Works.

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 Works on credit shall not take effect until the Client has completed a credit application with the Supplier and it has been approved with a credit limit established for the account;

(b)   in the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery; and

(c)   the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, the Supplier reserves the right to substitute comparable Materials and vary the Price as per clause 6.2. In all such cases the Supplier will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Works on hold, as per clause 7.2 until such time as the Supplier and the Client agree to such changes.

2.5            Any advice, recommendation, information, assistance or service provided by the Supplier in relation to Materials or Works supplied is given in good faith to the Client, or the Client’s agent and is based on the Supplier’s own knowledge and experience and shall be accepted without liability on the part of the Supplier.  Where such advice or recommendations are not acted upon then the Supplier shall require the Client or their agent to authorise commencement of the Works in writing. The Supplier shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

2.6            The Supplier’s preferred paint is DULUX which provides a professional finish and high quality.

2.7            Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3.               Authorised Representatives

3.1            The Client acknowledges that the Supplier shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to the Supplier, that person shall have the full authority of the Client to order any Materials, Works and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier’s profit margin) in providing any Materials, Works or variation/s requested thereto by the Client’s duly authorised representative.

4.               Errors and Omissions

4.1            The Client acknowledges and accepts that the Supplier 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 Supplier 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 Supplier in respect of the Works.

4.2            In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

4.3            In circumstances where the Client is required to place an order for Materials, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Materials (whether they are made to order Materials or not) ("Client Error"). The Client must pay for all Materials it orders from the Supplier notwithstanding that such Materials suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take delivery of such Materials. The Supplier is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Clients Errors.

5.               Change in Control

5.1            The Client shall give the Supplier 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 Supplier as a result of the Client’s failure to comply with this clause.

6.               Price and Payment

6.1            At the Supplier’s sole discretion, the Price shall be either:

(a)   as indicated on invoices provided by the Supplier to the Client in respect of Works performed or Materials supplied; or

(b)   the Supplier’s quoted Price (subject to clause 6.2) which shall be binding upon the Supplier provided that the Client shall accept the Supplier’s quotation in writing within thirty (30) days and unless otherwise stated, the quoted Price includes classic painting system  unless otherwise agreed. The Client acknowledges and agrees that additional coats required will be considered a variation and the additional costs involved will be charged for in accordance with clause 6.2.

6.2            The Supplier reserves the right to change the Price:

(a)   if a variation to the Materials which are to be supplied is requested; or

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

(c)   where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the Worksite, safety considerations, prerequisite work by any third party not being completed, change of design or paint colour selection, poor surface preparation, delays from third party trades, obscured building defects which require remedial work (such as repairs required to existing gibwork etc), presence of  wood rot or mould, hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Works; or

(d)   as a result of increases to the Supplier in the cost of labour or Materials or due to relevant industry awards (e.g. Worksite allowance and severance pay), which are outside the control of the Supplier.

6.3            Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Client shall be required to respond to any variation submitted by the Supplier within ten (10) days. Failure to do so will entitle the Supplier 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 Supplier’s sole discretion, a deposit will be required prior to the commencement of the Works.

6.5            Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by the Supplier, which may be:

(a)   on completion of the Works; or

(b)   by way of progress payments in accordance with the Supplier’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed; or

(c)   thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(d)   the date specified on any invoice or other form as being the date for payment; or

(e)   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 Supplier.

6.6            Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Supplier.

6.7            The Supplier may in its discretion allocate any payment received from the Client towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.

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 Supplier nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify the Supplier in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Supplier investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Supplier placing the Client’s account into default and subject to default interest in accordance with clause 20.1.

6.9            Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other contract for the sale of the Materials. 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.               Provision of the Works

7.1            Subject to clause 7.2 it is the Supplier’s responsibility to ensure that the Works start as soon as it is reasonably possible.

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

(a)   make a selection; or

(b)   have the Worksite ready for the Works; or

(c)   notify the Supplier that the Worksite is ready.

7.3            At the Supplier’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

7.4            The Supplier may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

7.5            Any time specified by the Supplier for delivery of the Works is an estimate only and the Supplier 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 Works to be supplied at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Works as agreed solely due to any action or inaction of the Client, then the Supplier shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

8.               Risk

8.1            If the Supplier retains ownership of the Materials under clause 15 then:

(a)   where the Supplier is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by the Supplier or the Supplier’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address); and

(b)   where the Supplier is to both supply and install Materials then the Supplier shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.

8.2            Notwithstanding the provisions of clause 8.1 if the Client specifically requests the Supplier to leave Materials outside the Supplier’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

8.3            The Supplier shall be entitled to rely on the accuracy of any plans, specifications and other 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 Supplier accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

8.4            The Client warrants those structures to which the Materials are to be affixed are able to withstand the installation thereof and are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, wood rot, mould etc) that the Supplier, or the Supplier’s employees, reasonably form the opinion that the Client’s premises is not safe for the Works to proceed then the Supplier shall be entitled to delay the provision of the Works (in accordance with the provisions of clause 7.2 above) until the Supplier is satisfied that it is safe for the installation to proceed.

8.5            Where the Client has provided instructions or specifications for the Supplier to complete the Works (including, but not limited to, any requested variation to the original design and/or paint colour selection), then the Supplier shall require proof of concept sign off prior to commencement of the Works and will accept no liability whatsoever for the finished Works being deemed as unsatisfactory to the Client should the Client fail to adhere to this clause.

8.6            The Client acknowledges and accepts that:

(a)   the Supplier shall be indemnified for any claims made where colour fade occurs due to paint colours chosen by the Client that have less than a forty percent (40%) light-reflectance value (LRV) as these are inclined to fade more readily than those colours with a greater LRV;

(b)   any faults with underlying surfaces or structures may affect the finish of the completed Works;

(c)   where the Supplier has been requested to perform remedial work on damaged structures, evidence of repairs may be apparent after the completion of the Works;

(d)   Materials supplied may:

(i)     exhibit variations in shade, colour, texture, surface and finish,

(ii)    mark or stain if exposed to certain substances; and

(iii)  be damaged or disfigured by impact or scratching.

8.7            The Supplier shall endeavour to match old for new, however, the Client acknowledges and accepts that colours may not match due to differences in colour matching/mixing technologies, fading and/or weathering of the sample provided to colour match from. Therefore, the Supplier shall not be held responsible or liable for any differences that may result.

8.8            The Supplier:

(a)   offers no guarantee against the following defects or damage that may occur naturally in the Works over time:

(i)     cracking of paint over plaster where the wrong paints are used for coating; or

(ii)    delaminating of the plaster caused by hydroscopic movement or dampness in the substrate; or

(iii)  damage caused by contact with chemicals, solvents, oils or any other substances; or

(iv)  the occurrence of efflorescence and any detrimental effects this has on the appearance of the Works; or

(v)   peeling or flaking caused by the environment or other external factors.

(b)   shall not be liable whatsoever for:

(i)     any pre-existing damages discovered by the Supplier prior to the commencement of the Works. The Client will be notified of any such discovery in writing; or

(ii)    inferior existing paintwork where the Supplier’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack, blemish, blistering or delamination; or

(iii)  the quality of the Works if the Client does not follow the Supplier’s recommendations as to the number of coats of paint required to obtain the final finish if the Client chooses to accept a reduced Price based on fewer coats of paint; or

(iv)  any loss or damage to the Works (including, but not limited to, painted/plastered surfaces) that is caused by any other tradesmen during and after the completion of the Works.

(c)   is not insured to remove furniture or fittings and will not do so, nor is the Supplier licensed to move appliances.

8.9            If the Client instructs the Supplier to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at the Supplier’s normal hourly rate.

9.               Client’s Responsibilities

9.1            Unless otherwise agreed, it is the intention of the Supplier, that it is the responsibility of the Client to:

(a)   provide and have erected scaffolding to enable the Works to be undertaken (where in the Supplier’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed;

(b)   ensure that full and final lighting as designed for the completed project is fully operational prior to sanding Works commencing and are made available for use at no cost for the duration of the project. Any costs incurred by the Supplier will be invoiced to the Client should this requirement not be met; and

(c)   provide the Supplier, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities where required.

9.2            Whilst the Supplier will exercise reasonable care, skill and ability while performing the Works, it shall be the Client’s responsibility to remove (or provide adequate dustsheets to protect the Client’s) furniture, furnishings or personal goods from the vicinity of the Works and agrees that the Supplier shall not be liable for any damage attributed to dust or damage caused by any sanding process through the Client’s failure to comply with this clause. Flaking or crumbing walls should be temporarily covered by the Client, until the coatings are dry.

9.3            In the event asbestos or any other toxic substances (such as mould or rot) are discovered at the Worksite, that it is the Client’s responsibility to ensure the safe removal of the same. The Client further agrees to indemnify the Supplier against any costs incurred by the Supplier as a consequence of such discovery. Under no circumstances will the Supplier handle removal of asbestos product.

9.4            It is the Supplier’s recommendation that:

(a)   it is in the Client’s best interest that the Client vacates the premises both during the course of the Works and during the drying period due to the fumes generated from the solvent based polyurethane coatings which are toxic when the paint is wet; and

(b)   all foodstuffs, fabric, leather and any other ‘porous’ materials that are in close proximity of the walls being coated be removed.

9.5            The Client acknowledges and agrees that all costs associated with accommodation during this time, are the sole responsibility of the Client.

9.6            Where the Supplier requires that Materials, tools etc. required for the Works be stored at the Worksite, the Client shall supply the Supplier a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.

10.            Worksite Access

10.1         The Supplier is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s.  All rubbish generated by the Supplier will be placed in a designated area appointed by the Client but the responsibility of removal of same is the Client or the Client’s agent, unless otherwise agreed.

10.2         The Client shall ensure that the Supplier has clear and free access to the Worksite at all times to enable them to undertake the Works. The Supplier shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of the Supplier.

10.3         Worksite Inductions

(a)   in the event the Client requires an employee or sub-contractor of the Supplier to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay the Supplier’s standard (and/or overtime, if applicable) hourly labour rate; or

(b)   where the Supplier is in control of the Worksite, the Client and/or the Clients third party contractors must initially carry out the Supplier’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by the Supplier.

11.            Underground Locations

11.1         Prior to the Supplier commencing the Works the Client must advise the Supplier of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.

11.2         Whilst the Supplier will take all care to avoid damage to any underground services the Client agrees to indemnify the Supplier in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1

12.            Termite Protection

12.1         In the event of discovery of termites at the time of quoting or where the Works may be subject to an area that has the potential to be susceptible to termites, then the Supplier is obligated to inform the Client prior to commencement of any of the prescribed Works the requirements to comply with the Building Code of Australia (“BCA”) requirements of Part 3.1.3 of Volume Two which covers the BCA Deemed-to-Satisfy Provisions for termite risk management for Class 1 and 10 buildings (together with any cost implications). The intent of these requirements under the BCA is to provide a termite management system that deters termites from gaining entry to a building via a concealed route.

12.2         The BCA requirements apply where:

(a)   the building is constructed in area where subterranean termites are known to present a potential risk of attack, and

(b)   a primary element of the building is subject to termite attack i.e. the building element does not consist of, or a combination of, any of the following material:

(i)     Steel, aluminium and other metals;

(ii)    Concrete;

(iii)  Masonry;

(iv)  Fibre-reinforced cement;

(v)   Timber – naturally termite resistant (in accordance with AS 3660.1);

(vi)  Timber – preservative treated.

12.3         Regular maintenance and monitoring is very important to ensure the effectiveness of a termite management system.  The Supplier recommends regular inspections, at least every twelve (12) months and to have a licenced pest controller inspect and report on the Client’s property.  The Supplier does not accept any form of liability in the event that the Client chooses not to follow the Supplier’s recommendations outlined under this clause 12, once the Works have been completed.

13.            Insurance

13.1         The Supplier shall have public liability insurance of at least five million dollars ($5m). It is the Client’s responsibility to ensure that they are similarly insured.

14.            Compliance with Laws

14.1         The Client and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any occupational health and safety (OHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

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

14.3         Both parties acknowledge and agree:

(a)   to comply with the National Construction Code of Australia (NCC) and the Building Act 1993, in respect of all workmanship and building products to be supplied during the course of the Works; and

(b)   that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.

14.4         Where the Client has supplied products for the Supplier to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products However, if in the Supplier’s opinion, it is believed that the materials supplied are Non-Conforming products as per state regulations, then the Supplier shall be entitled, without prejudice, to halt the Works until the appropriate conforming materials are sourced and all costs associated with such a change to the plans will be invoiced in accordance with clause 6.2.

15.            Title

15.1         The Supplier and the Client agree that ownership of the Materials shall not pass until:

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

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

15.2         Receipt by the Supplier 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.

15.3         It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 15.1:

(a)   the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Supplier on request;

(b)   the Client holds the benefit of the Client’s insurance of the Materials on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;

(c)   the production of these terms and conditions by the Supplier shall be sufficient evidence of the Supplier’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Supplier to make further enquiries;

(d)   the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;

(e)   the Client should not convert or process the Materials 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 Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;

(f)     unless the Materials have become fixtures the Client irrevocably authorises the Supplier to enter any premises where the Supplier believes the Materials are kept and recover possession of the Materials;

(g)   the Supplier may recover possession of any Materials in transit whether or not delivery has occurred;

(h)   the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Supplier;

(i)     the Supplier may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

16.            Personal Property Securities Act 2009 (“PPSA”)

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

16.2         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 Materials and/or collateral (account) – being a monetary obligation of the Client to the Supplier for Works – that have previously been supplied and that will be supplied in the future by the Supplier to the Client.

16.3         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 Supplier 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 16.3(a)(i) or 16.3(a)(ii);

(b)   indemnify, and upon demand reimburse, the Supplier 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 Materials charged thereby;

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

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

(e)   immediately advise the Supplier of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.

16.4         The Supplier 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.

16.5         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.

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

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

16.8         The Client shall unconditionally ratify any actions taken by the Supplier under clauses 16.3 to 16.5.

16.9         Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

17.            Security and Charge

17.1         In consideration of the Supplier agreeing to supply the Materials, 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, and the Client grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering the Supplier’s security interest over the Client on the PPSA, 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).

17.2         The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.

17.3         The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.

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

18.1         The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Supplier to inspect the Materials or to review the Works provided.

18.2         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).

18.3         The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

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

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

18.6         If the Supplier is required to replace any Materials under this clause or the CCA, but is unable to do so, the Supplier may refund any money the Client has paid for the Materials.

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

18.8         If the Client is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the Materials is:

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

(b)   limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Materials;

(c)   otherwise negated absolutely.

18.9         Subject to this clause 18, returns will only be accepted provided that:

(a)   the Client has complied with the provisions of clause 18.1; and

(b)   the Supplier has agreed that the Materials are defective; and

(c)   the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and

(d)   the Materials are returned in as close a condition to that in which they were delivered as is possible.

18.10      Notwithstanding clauses 18.1 to 18.9 but subject to the CCA, the Supplier 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 Materials;

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

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

(d)   interference with the Works by the Client or any third party without the Supplier’s prior approval;

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

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

18.11      The Supplier may in its absolute discretion accept non-defective Materials for return in which case the Supplier may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.

18.12      Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will only accept a return on the conditions imposed by that law.

18.13      Subject to clause 18.1, customised, or non-stocklist items or Materials made or ordered to the Client’s specifications are not acceptable for credit or return.

19.            Intellectual Property

19.1         Where the Supplier has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Supplier, and shall only be used by the Client at the Supplier’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.

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

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

20.            Default and Consequences of Default

20.1         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 Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

20.2         If the Client owes the Supplier any money, the Client shall indemnify the Supplier from and against all costs and disbursements:

(a)   incurred; and/or

(b)   which would be incurred and/or

(c)   for which by the Client would be liable;

in regard to legal costs on a solicitor and own client basis, internal administration fees, the Supplier’s contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

20.3         Further to any other rights or remedies the Supplier may have under this Contract, if a Client has made payment to the Supplier, 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 Supplier under this clause 20 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.

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

(a)   any money payable to the Supplier becomes overdue, or in the Supplier’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 Supplier;

(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.

21.            Cancellation

21.1         Without prejudice to any other remedies the Supplier 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 Supplier may suspend or terminate the supply of Works to the Client. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.

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

21.3         In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).

21.4         Cancellation of orders for products 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.

22.            Privacy Policy

22.1         All emails, documents, images or other recorded information held or used by the Supplier is Personal Information, as defined and referred to in clause 22.3, and therefore considered Confidential Information. The Supplier 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 Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Supplier that may result in serious harm to the Client, the Supplier 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.

22.2         Notwithstanding clause 22.1, privacy limitations will extend to the Supplier in respect of Cookies where the Client utilises the Supplier’s website to make enquiries. The Supplier 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 Supplier when the Supplier sends an email to the Client, so the Supplier may collect and review that information (“collectively Personal Information”)

If the Client consents to the Supplier’s use of Cookies on the Supplier’s website and later wishes to withdraw that consent, the Client may manage and control the Supplier’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

22.3         The Client agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. 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) about the Client in relation to credit provided by the Supplier.

22.4         The Client agrees that the Supplier 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.

22.5         The Client consents to the Supplier being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.

22.6         The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):

(a)   the provision of Works; and/or

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

22.7         The Supplier 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.

22.8         The information given to the CRB may include:

(a)   Personal Information as outlined in 22.3 above;

(b)   name of the credit provider and that the Supplier 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 (provided the Supplier is a member of an approved OAIC External Disputes Resolution Scheme), 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 Supplier 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 Supplier, 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).

22.9         The Client shall have the right to request (by e-mail) from the Supplier:

(a)   a copy of the Personal Information about the Client retained by the Supplier and the right to request that the Supplier correct any incorrect Personal Information; and

(b)   that the Supplier does not disclose any Personal Information about the Client for the purpose of direct marketing.

22.10      The Supplier 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.

22.11      The Client can make a privacy complaint by contacting the Supplier via e-mail. The Supplier 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.

23.            Building and Construction Industry Security of Payment Act 2002

19.1         At the Supplier’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.

19.2         Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

24.            Service of Notices

24.1         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.

24.2         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.

25.            Trusts

25.1         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 Supplier may have notice of the Trust, the Client covenants with the Supplier 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 Supplier (the Supplier 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.

26.            General

26.1         Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.

26.2         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.

26.3         These terms and conditions and any Contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client's purchase order).

26.4         Subject to clause 18, the Supplier 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 Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

26.5         The Supplier may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

26.6         The Client cannot licence or assign without the written approval of the Supplier.

26.7         The Supplier may elect to subcontract out any part of the Works 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 Supplier’s sub-contractors without the authority of the Supplier.

26.8         The Client agrees that the Supplier 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 Supplier to provide Works to the Client.

26.9         Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or  measures being enforced by Governments or embargo, including but not limited to, any Government imposed boarder lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party.

26.10      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.

26.11      The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.