Terms & Conditions of Trade
1. Definitions
“Seller” means Premier Windows (WA) Pty Ltd (ACN 670 929 594), its successors and assigns or any person acting on behalf of and with the authority of Premier Windows (WA) Pty Ltd.
1.2. “Customer” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Customer, is a reference to each Customer jointly and severally.
1.3. “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Seller to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4. “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Seller and the Customer in accordance with clause 5 below.
1.5. “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.
2. Acceptance
The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.
2.2. These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Seller.
2.3. In the event that the Materials and/or Works provided by the Seller are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by the Seller and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
2.4. The Customer accepts that the Materials are created in such a way that is fully compliant with Australian standards AS 1288- 2006(R2016) and IGMA standards. Safety glass will always be fitted, where required unless otherwise instructed. The Seller will not accept liability if the Customer does not choose to follow the Seller’s recommendations in any respect.
2.5. The Customer accepts and acknowledges that during the provision of the Works that it shall be the Customers responsibility to ensure that any children and/or pets on site and/or any visitors to the site are moved to a safe location away from the installation of the Materials for their own health and safety. The Seller accepts no liability in the event of any injury due to failure by the Customer to comply with this clause.
3. Electronic Transactions Act 2003
3.1. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1. The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1. At the Seller’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Seller to the Customer in respect of Works performed or Materials supplied; or
(b) the Seller’s quoted Price (subject to clause 5.2) which shall be binding upon the Seller provided that the Customer shall accept the Seller’s quotation in writing within thirty (30) days.
5.2. The Seller 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, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works; or
(d) in the event of increases to the Seller in the cost of labour or materials which are beyond the Seller’s control.
5.3. Variations will be charged for on the basis of the Seller’s quotation, and will be detailed in writing, and shown as variations on the Seller’s invoice. The Customer shall be required to respond to any variation submitted by the Seller within ten (10) working days. Failure to do so will entitle the Seller to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4. At the Seller’s sole discretion, a non-refundable deposit shall be required.
5.5. Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Seller, which may be:
(a) by way of progress payments in accordance with the Seller’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 site but not yet installed; or
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Seller.
5.6. Payment may be made by electronic/on-line banking, or, if available, by credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Seller.
5.7. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8. Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Seller the full GST amount when invoiced. In addition, the Customer 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.
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6. Provision of the Works
6.1. Subject to clause 6.2 it is the Seller’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2. The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Seller claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond
the Seller’s control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify the Seller that the site is ready.
6.3. The Seller 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.
6.4. At the sole discretion of the Seller the cost of delivery is included in the Price.
6.5. Any time specified by the Seller for delivery of the Works is an estimate only and the Seller will not be liable for any loss or damage incurred by the Customer 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 Seller is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then the Seller 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.
7. Risk
7.1. If the Seller retains ownership of the Materials under clause 7 then:
(a) where the Seller is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
i. the Customer or the Customer’s nominated carrier takes possession of the Materials at the Seller’s address; or
ii. the Materials are delivered by the Seller or the Seller’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
(b) where the Seller is to both supply and install Materials then the Seller shall maintain a contract works insurance policy until items are installed at the Customers address, in whole or part. Upon installation all risk for the works shall immediately pass to the Customer.
7.2. Notwithstanding the provisions of clause 7.1 if the Customer specifically requests the Seller to leave Materials outside the Seller’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 Customer and it shall be the Customer’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 Customer’s expense.
7.3. The Customer acknowledges that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, markings and veining, and may fade or change colour over time. Whilst the Seller will make every effort to match batches of product and/or samples supplied in order to minimise such variations, the Seller shall not be liable in any way.
7.4. Holes, cutouts and cutting of the Materials may weaken the strength of the Materials and although it’s unlikely, cracking may occur. The Seller accepts no responsibility against cracks occurring after such Materials (that are subject to holes and cut outs) are installed unless a toughened glass is used.
7.5. The Customer acknowledges and accepts that the Seller will be installing the Goods in accordance with Industry Standard AS/NZS 4666:2012 for insulating glass. The Seller will not be liable for any losses, claims, damages and costs as a result of minor marks that are visible from a distance of more than two (2) metres as these shall not be deemed a defect.
7.6. In the event glass is ordered to be cut to size, the Customer shall take delivery of the Materials tendered notwithstanding that the Materials so delivered shall not exceed three millimetres (3mm) in discrepancies of the size ordered.
7.7. Although utmost care will be taken while removing old doors and windows, the Seller will not be liable for damage to those doors and windows, damage to existing plaster, walls, tiles etc.
7.8. The Seller will not be liable for any defects discovered while carrying out the installation (including but not limited to, decayed or missing material).
8. Dimensions, Plans and Specifications
8.1. Dimensions and specifications contained or referred to in any agreement or in any publications maintained or issued by the Seller are estimates only. Unless otherwise expressly agreed in writing by the Seller, it is not a condition of any agreement that the Materials will correspond precisely with such dimensions and specifications, and all customary building industry tolerances will be allowed.
8.2. The Seller shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer, or the Customer’s representative.
8.3. The 70mm frame creates an acoustic and thermal system comprising of glass and framing, which helps to keep the Customer’s building cool and/or warm when necessary, reducing energy consumption costs and producing greater comfort. It also provides increased security over other designs. All the Materials are corrosion-resistant and thus require little to no maintenance aside an occasional cleaning. The UPVC frames are subject to a guarantee of up to ten (10) years which shall be detailed in the warranty documentation provided at the time of installation.
9. Title
9.1. The Seller and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid the Seller all amounts owing to the Seller; and
(b) the Customer has met all of its other obligations to the Seller.
9.2. Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
9.3. It is further agreed that until ownership of the Materials passes to the Customer in accordance with clause 9.1:
(a) the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Seller on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Seller and must pay to the Seller 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 Seller shall be sufficient evidence of the Seller’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Seller to make further enquiries.
(d) the Customer 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 Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
(e) the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
(f) unless the Materials have become fixtures the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Materials are kept and recovers possession of the Materials.
(g) the Seller may recover possession of any Materials in transit whether or not delivery has occurred.
(h) the Customer 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 Seller.
(i) The Seller may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2. Upon assenting to these terms and conditions in writing the Customer 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 Customer to the Seller for Works – that have previously been supplied and that will be supplied in the future by the Seller to the Customer.
10.3. The Customer 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) that the Seller may reasonably require to:
i. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
ii. register any other document required to be registered by the PPSA; or
iii. correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Seller.
10.4. The Seller and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5. The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6. The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7. Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
10.8. The Customer shall unconditionally ratify any actions taken by the Seller under clauses 10.3 to 10.5.
10.9. Subject to any express provisions to the contrary (including those contained in this clause 10) nothing in these terms and conditions conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1. In consideration of the Seller agreeing to supply the Materials, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2. The Customer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
11.3. The Customer irrevocably appoints the Seller and each director of the Seller as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1. The Customer must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer 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 Customer must allow the Seller to inspect the Materials or to review the Works provided.
12.2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
12.3. The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5. If the Customer is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6. If the Seller is required to replace any Materials under this clause or the CCA, but is unable to do so, the Seller may refund any money the Customer has paid for the Materials.
12.7. Subject to the CCA in respect of any expressed warranties and guarantees, the Seller liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty as specified in the “Warranty against Defects” documentation provided to the Customer by the Seller, at the Seller’s sole discretion which may be:
i. an expressed warranty that will cease in respect of the Goods supplied from the date of installation in accordance with clause 7 subject to:
1. twelve (12) months on internal blinds installed within double-glazed windows;
2. five (5) years on hardware (including, but not limited to locks, handles and wheels);
3. ten (10) years replacement warranty on UVPC.
ii. for all other products the warranty provided will cease after one (1) year in respect of the Goods supplied and five (5) years in respect of the installation of the Goods.
iii. any defect repair will be limited to supply only of the replacement or repaired faulty components or materials;
iv. in respect of all claims the Seller shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
(b) limited to any warranty to which the Seller is entitled if the Seller did not manufacture the Goods.
12.8. If the Seller 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 Seller may refund any money the Customer 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 Customer which was not defective.
12.9. If the Customer is not a consumer within the meaning of the CCA, the Seller’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 Customer by the Seller at the Seller’s sole discretion;
(b) limited to any warranty to which the Seller is entitled if the Seller did not manufacture the Materials;
(c) otherwise negated absolutely.
12.10. Subject to this clause 12,returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 12.1; and
(b) the Seller has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Customer’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.
12.11. Notwithstanding clauses 12.1 to 12.10 but subject to the CCA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Materials;
(b) the Customer using the Materials for any purpose other than that for which they were designed;
(c) the Customer 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 Customer or any third party without the Seller’s prior approval;
(e) the Customer failing to follow any instructions or guidelines provided by the Seller;
(f) fair wear and tear, any accident, or act of God.
12.12. The Seller may in its absolute discretion accept defective Materials for return in which case the Seller may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.
12.13. Notwithstanding anything contained in this clause if the Seller is required by law to accept are turn then the Seller will only accept a return on the conditions imposed by that law.
13. Intellectual Property
13.1. Where the Seller has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Seller, and shall only be used by the Customer at the Seller’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Seller.
13.2. The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
13.3. The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Seller has created for the Customer.
14. Default and Consequences of Default
14.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half per cent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2. If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).
14.3. Further to any other rights or remedies the Seller may have under this contract, if a Customer has made payment to the Seller, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
14.4. Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by the Seller;
(c) the Customer 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 Customer or any asset of the Customer.
15. Cancellation
15.1. Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Works to the Customer. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
15.2. The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to the Seller for Works already performed. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.3. In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.4. Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
16. Privacy Act 1988
16.1. The Customer agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Seller.
16.2. The Customer agrees that the Seller may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(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/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
16.3. The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
16.4. The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Customer’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 Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Works.
16.5. The Seller may give information about the Customer 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 Customer including credit history.
16.6. The information given to the CRB may include:
(a) personal information as outlined in 16.1 above;
(b) name of the credit provider and that the Seller is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternavitely that the Customer no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of the Seller, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
16.7. The Customer shall have the right to request (by e-mail) from the Seller:
(a) a copy of the information about the Customer retained by the Seller and the right to request that the Seller correct any incorrect information; and
(b) that the Seller does not disclose any personal information about the Customer for the purpose of direct marketing.
16.8. The Seller will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
16.9. The Customer can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the
Information Commissioner at www.oaic.gov.au.
17. Service of Notices
17.1. Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
17.2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
18. General
18.1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2. These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts in that state.
18.3. Subject to clause 12 the Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
18.4. The Seller may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
18.5. The Customer cannot licence or assign without the written approval of the Seller.
18.6. The Seller 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 Customer agrees and understands that they have no authority to give any instructions to any of the Seller’s sub-contractors without the authority of the Seller.
18.7. The Customer agrees that the Seller may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Seller to provide Works to the Customer.
18.8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.9. Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow
them to do so, they are not insolvent and this agreement creates binding and valid legal obligations on them.
