Bris Alum A4PriceBook 2017.pdf - Catalog - Page 82
Bris Aluminium Pty Ltd – Terms & Conditions of Trade
1.
Definitions
1.1“Seller” means Bris Aluminium Pty Ltd, its successors and assigns or any person acting on behalf of and with
the authority of Bris Aluminium Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is
more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Seller to the Client at the Client’s request from time to time
(where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Seller
and the Client in accordance with clause 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
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms
and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 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 Client and the Seller.
2.3Goods are supplied by the Seller only on the terms and condition of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that
purport to override these terms and conditions of trade.
2.4 In the event that the Goods and/or Services provided by the Seller are the subject of an insurance claim that the
Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance
Seller 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.
2.5 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed
a credit application with the Seller and it has been approved with a credit limit established for the account.
2.6 In the event that the supply of Goods request exceeds the Clients credit limit and/or the account exceeds the
payment terms, the Seller reserves the right to refuse delivery.
2.7 The Seller reserves the right to substitute comparable Goods (or components of the Goods), and in all such
cases the Seller will notify the Client in advance of any such substitution.
3.
Electronic Transactions (Queensland) Act 2001
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied
with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that
Act or any Regulations referred to in that Act.
4.
Change in Control
4.1 The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in
the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for
any loss incurred by the Seller as a result of the Client’s failure to comply with this clause.
5.
Price and Payment
5.1 At the Seller’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Seller to the Client; or
(b) the Price as at the date of delivery of the Goods according to the Seller’s current price list; or
(c) the Seller’s estimated Price, with the final price only being ascertained upon completion of the Services.
Variances in the estimated Price of more than ten percent (10%) will be subject to the Client’s approval
before proceeding with the Services; or
(d) the Seller’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or
otherwise for a period of thirty (30) days.
5.2 The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested. Any variation
from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of
additional Services required due to unforeseen circumstances or as a result of any increase to the Seller’s in the
cost of materials and labour) will be charged for on the basis of the Seller’s quotation, and will be detailed in
writing, and shown as variations on the Seller’s invoice. The Client shall be required to respond to any variation
submitted by the Seller 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
5.3 At the Seller’s sole discretion a non-refundable deposit may be required.
5.4Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s
determined by the Seller, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to
the Client by the Seller.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as
agreed to between the Client and the Seller.
5.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be
owed to the Client by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Seller
an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement
for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the
same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes
and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6.
Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at the Seller’s address; or
(b) the Seller (or the Seller’s nominated carrier) delivers the Goods to the Client’s nominated address even if the
Client is not present at the address.
6.2 At the Seller’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
6.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In
the event that the Client is unable to take delivery of the Goods as arranged then the Seller shall be entitled to
charge a reasonable fee for redelivery and/or storage.
6.4 The Seller may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
6.5 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
6.6 Any time or date given by the Seller to the Client is an estimate only. The Client must still accept delivery of the
Goods even if late and the Seller will not be liable for any loss or damage incurred by the Client as a result of the
delivery being late.
7.
Risk
7.1
Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods
on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client,
the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and
conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the
need for any person dealing with the Seller to make further enquiries.
7.3 If the Client requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the
Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
7.4 The Seller 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 Seller accepts no responsibility for any loss, damages, or costs however resulting from
these inaccurate plans, specifications or other information.
7.5 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and
finish, and may fade or change colour over time. The Seller will make every effort to match batches of product
supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations
occur.
7.6Holes, cut outs and cutting of the Goods may weaken the strength of the Goods. The Seller accepts no
responsibility where such Goods (that are subject to holes and cut outs) are installed.
7.7 The Client acknowledges that where a powder coated and/or an anodised surface finish has been selected,
slight colour variation may occur between the main unit frame and any installation trims used due to the
difference in aluminium alloys available and manufacturing standards and tolerances shall not be deemed to
be a defect in the Goods.
8.
Suitability for Applications
8.1 To the extent permitted by law, no condition is made or to be implied, nor is any warranty given, or to be implied
as to the life or wear of the Goods supplied or that they will be suitable for any particular purpose, or for use
under specific conditions, notwithstanding that such purpose or conditions may be known or made known
to the Seller. Whilst the Seller supplies products in accordance with specific manufacturing standards, it is
the Client’s responsibility to ensure that the Goods comply with the requirements of the applicable Australian
Glazing Standards and codes pf particular glazing applications. The Seller reserves the right to sub-contract
the production, manufacture or supply of the whole or any part of the Goods or any materials or Services to be
supplied.
9.
Dimensions, Plans and Specifications
9.1All customary building industry tolerances shall apply to the dimensions and measurements of the Goods
unless the Seller and the Client agree otherwise in writing.
10. Access
10.1 The Client shall ensure that the Seller has clear and free access to the work site at all times to enable them
to undertake the Services. The Seller shall not be liable for any loss or damage to the site (including, without
limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the
negligence of the Seller.
11. Compliance with Laws
11.1 The Client and the Seller shall comply with the provisions of all statutes, regulations and bylaws of government,
local and other public authorities that may be applicable to the Services.
11.2 The Client shall obtain (at the expense of the Client) all licenses, permits and approvals etc. that may be required
for the Services.
11.3 The Client agrees that the site will comply with any work health and safety (WHS) laws and any other relevant
safety standards or legislation.
12.
12.1
Title
The Seller and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Seller all amounts owing to the Seller; and
(b) the Client has met all of its other obligations to the Seller.
12.2Receipt 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.
12.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 12.1 that the Client is only a
bailee of the Goods and must return the Goods to the Seller on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Seller and must pay to the
Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary
course of business and for market value. If the Client sells, disposes or parts with possession of the Goods
then the Client must hold the proceeds of any such act on trust for the Seller and must pay or deliver the
proceeds to the Seller on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does
so then the Client holds the resulting product on trust for the benefit of the Seller and must sell, dispose of
or return the resulting product to the Seller as it so directs.
(e) the Client irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are
kept and recover possession of the Goods.
(f) the Seller may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any
interest in the Goods while they remain the property of the Seller.
(h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that
ownership of the Goods has not passed to the Client.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has
the meaning given to it by the PPSA.
13.2Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms
and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in
all Goods and/or collateral (account) – being a monetary obligation of the Client to the Seller for Services – that
have previously been supplied and that will be supplied in the future by the Seller to the Client.
13.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be
complete, accurate and up-to-date in all respects) which the Seller may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the
Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing
statement or financing change statement on the Personal Property Securities Register established by the
PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent
of the Seller;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to
the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Seller;
(e) immediately advise the Seller of any material change in its business practices of selling the Goods which
would result in a change in the nature of proceeds derived from such sales.
13.4The Seller and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement
created by these terms and conditions.
13.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the
PPSA.
13.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by the Seller, the Client waives their right to receive a verification
statement in accordance with section 157 of the PPSA.
13.8 The Client must unconditionally ratify any actions taken by the Seller under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the
effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1In consideration of the Seller agreeing to supply the Goods, the Client charges all of its rights, title and interest
(whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either
now or in the future, to secure the performance by the Client of its obligations under these terms and conditions
(including, but not limited to, the payment of any money).
14.2 The Client indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs
on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
14.3 The Client irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful
attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not
limited to, signing any document on the Client’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Client must inspect the Goods on delivery and must within forty-eight (48) hours 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 Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such
defect becomes evident. Upon such notification the Client must allow the Seller to inspect the Goods.
15.2 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).
15.3 The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the NonExcluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the
Seller makes no warranties or other representations under these terms and conditions including but not limited
to the quality or suitability of the Goods. The Seller’s liability in respect of these warranties is limited to the fullest
extent permitted by law.
15.5 If the Client is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted
by section 64A of Schedule 2.
15.6 If the Seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may
refund any money the Client has paid for the Goods.
15.7 If the Client is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in
the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Seller at the
Seller’s sole discretion;
(b) limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods;
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(b) the Seller has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, the Seller shall not be liable for any defect or
damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become
apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by the Seller;
(e) fair wear and tear, any accident, or act of God.
15.10 Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the
Seller will only accept a return on the conditions imposed by that law.
16. Intellectual Property
16.1 Where the Seller has designed, drawn or developed Goods for the Client, then the copyright in any designs and
drawings and documents shall remain the property of the Seller. Under no circumstances may such designs,
drawings and documents be used without the express written approval of the Seller.
16.2 The Client warrants that all designs, specifications or instructions given to the Seller will not cause the Seller
to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client
agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such
infringement.
16.3 The Client agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any
competition, any documents, designs, drawings or Goods which the Seller has created for the Client.
17. Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of
payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such
interest shall compound monthly at such a rate) after as well as before any judgment.
17.2If the Client owes the Seller any money the Client shall indemnify the Seller from and against all costs and
disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration
fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).
17.3 Further to any other rights or remedies the Seller may have under this contract, if a Client has made payment
to the Seller, and the transaction is subsequently reversed, the Client shall be liable for the amount of the
reversed transaction, in addition to any further costs incurred by the Seller under this clause 17 where it can be
proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under
this agreement.
17.4 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any
obligation (including those relating to payment) under these terms and conditions the Seller may suspend or
terminate the supply of Goods to the Client. The Seller will not be liable to the Client for any loss or damage the
Client suffers because the Seller has exercised its rights under this clause.
17.5 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any
Please note that a larger print version of these terms and conditions is available from the Seller on request
18.
18.1
18.2
18.3
19.
19.1
19.2
order of the Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for
payment, become immediately payable if:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to
make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Seller;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an
arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the
Client or any asset of the Client.
Cancellation
The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Seller
shall repay to the Client any money paid by the Client for the Goods. The Seller shall not be liable for any loss or
damage whatsoever arising from such cancellation.
In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred
(whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any
loss of profits).
Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not
be accepted once production has commenced, or an order has been placed.
Privacy Act 1988
The Client 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
Client in relation to credit provided by the Seller.
The Client agrees that the Seller may exchange information about the Client with those credit providers and
with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client
is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two
years.
19.3 T he Client consents to the Seller being given a consumer credit report to collect overdue payment on
commercial credit.
19.4 The Client agrees that personal credit information provided may be used and retained by the Seller for the
following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
19.5 The Seller may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
19.6 The information given to the CRB may include:
(a) personal information as outlined in 19.1 above;
(b) name of the credit provider and that the Seller is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/
termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are
overdue by more than sixty (60) days and for which written notice for request of payment has been made
and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts
and the Seller has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates
of payments);
(g) information that, in the opinion of the Seller, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty
dollars ($150).
19.7 The Client shall have the right to request (by e-mail) from the Seller:
(a) a copy of the information about the Client 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 Client for the purpose of direct
marketing.
19.8 The Seller will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required
unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or
stored in accordance with the law.
19.9 The Client can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that
complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the
complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the
resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
20. Unpaid Seller’s Rights
20.1 Where the Client has left any item with the Seller for repair, modification, exchange or for the Seller to perform
any other service in relation to the item and the Seller has not received or been tendered the whole of any
monies owing to it by the Client, the Seller shall have, until all monies owing to the Seller are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable
to the sale or disposal of uncollected goods.
20.2 The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any monies
owing to the Seller having been obtained against the Client.
21. Dispute Resolution
21.1If a dispute arises between the parties to this contract then either party shall send to the other party a notice
of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after
service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such
conference each party shall be represented by a person having authority to agree to a resolution of the dispute.
In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by
hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial
Arbitration.
22. Building and Construction Industry Payments Act 2004
22.1 At the Seller’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Payments Act 2004 may apply.
22.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the
Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the
Act where applicable.
23. Fit for purpose
23.1 The Customer agrees that the Company shall not be liable for any:
(a) Representation, promise or undertaking regarding the fitness or otherwise of Goods supplied by the
Company unless it is made in writing or implied by law.
(b) ailure by the Customer to fix, install, erect, or maintain the Goods in accordance with any advice,
recommendation, specification, Information, assistance or service provided by the Company in relation to
Goods sold or manufactured by it.
24. General
24.1 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.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland
in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts in
Queensland.
24.3 Subject to clause 15, the Seller shall be under no liability whatsoever to the Client for any indirect and/or
consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the
Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under
no circumstances shall exceed the Price of the Goods).
24.4The Seller may licence and/or assign all or any part of its rights and/or obligations under this contract without
the Client’s consent.
24.5 The Seller may sub-contract all or any part of its rights and/or obligations under this contract with the written
consent of the Client, which shall not be unreasonably withheld. Where the Seller elects to sub-contract out
any part of the Services, it shall not be relieved from any liability or obligation under this contract by so doing.
Furthermore, the Client agrees and accepts that it has no authority to give any instruction to any of the Seller’s
sub-contractors without the authority of the Seller.
24.6The Client agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a
change to these terms and conditions, then that change will take effect from the date on which the Seller
notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes
a further request for the Seller to provide Goods to the Client.
24.7 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.
24.8 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 that this agreement creates binding and valid
legal obligations on them.
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