1. Definitions
1.1 “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.
1.2 “SF” means Stronger Foundations Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Stronger Foundations Pty Ltd.
1.3 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting SF 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.
1.4 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by SF 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).
1.5 “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.
1.6 “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 ordering Works via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between SF and the Client in accordance with clause 6 below.
1.8 “GST” means Goods and Services Tax 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 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 These terms and conditions may be meant to be read in conjunction with SF’s Hire Form, and:
(a) where the context so permits, the terms ‘Works’ or ‘Materials’ shall include any supply of Equipment, as defined therein; and
(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
2.5 In the event that SF is required to provide the Works urgently that may require SF’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays), then SF reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between SF and the Client.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (NSW) or 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.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that SF 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 SF 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 SF in respect of the Works.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of SF; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give SF 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 change in trustees, business practice). The Client shall be liable for any loss incurred by SF as a result of the Client’s failure to comply with this clause.
5. Call-Out Fee
5.1 The Client shall notify SF of any request to change the time or date of the installation no later than 12 noon on the day before the installation is due to take place. SF reserves the right to charge a call-out fee if the Client fails to notify SF by the prescribed time.
5.2 Call-out fee shall mean all costs (including, but not limited to, hourly rates) incurred by SF due to:
(a) SF not being able to access the worksite at the prescribed time; or
(b) the Client failing to notify SF before 12 noon on the day before the installation of a request to change the time or date of the installation.
6. Price and Payment
6.1 At SF’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by SF to the Client in respect of Works performed or Materials supplied; or
(b) SF’s quoted Price (subject to clause 6.2) which shall be binding upon SF provided that the Client shall accept SF’s quotation in writing within thirty (30) days.
6.2 SF 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 site, obscured building defects, safety considerations, availability or machinery, prerequisite work by any third party not being completed, hard rock or other barriers below the surface, latent soil conditions, 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 SF in the cost of labour or materials which are beyond SF’s control.
6.3 Variations will be charged for on the basis of SF’s quotation, and will be detailed in writing, and shown as variations on SF’s invoice. The Client shall be required to respond to any variation submitted by SF within ten (10) working days. Failure to do so will entitle SF 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 SF’s sole discretion a non-refundable deposit may be required.
6.5 No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, SF reserves the right to treat retentions as placing the Client’s account into default.
6.6 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by SF, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with SF’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
(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 SF.
6.7 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 SF.
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 SF nor to withhold payment of any invoice because part of that invoice is in dispute.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to SF an amount equal to any GST SF must pay for any supply by SF 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 SF’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 SF claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond SF’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify SF that the site is ready.
7.3 SF 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.
7.4 Any time specified by SF for delivery of the Works is an estimate only and SF 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 SF is unable to supply the Works as agreed solely due to any action or inaction of the Client, then SF 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 SF retains ownership of the Materials under clause 14 then:
(a) where SF 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 either;
(i) the Client or the Client’s nominated carrier takes possession of the Materials at SF’s address; or
(ii) the Materials are delivered by SF or SF’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address); and
(iii) at SF’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
(b) where SF is to both supply and install Materials then SF 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 SF to leave Materials outside SF’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 Where SF is required to install the Materials the Client warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is sound and will sustain the installation and work incidental thereto and SF shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
8.4 The Client accepts and acknowledges that SF gives no warranty as to its capacity and performance of its concrete pumping plant. In the event of any failing or breakdown of the concrete pumping plant the Client accepts that SF shall under no circumstances be liable for any loss or damages howsoever arising, (including, but not limited to, loss of time, concrete or other materials or any extra costs to the Client).
8.5 SF shall not be held responsible for any damage to the Materials or delays to delivery caused by outside agents. Where the Client requests SF to repair such damage then SF reserves the right to charge the Client for any costs incurred in rectifying such damage.
8.6 SF’s obligation is to transfer concrete supplied at ground level and to place the concrete at such parts of the worksite as the Client requires. This shall be effected by pipeline from a portable pumping plant. SF’s obligation does not extend in any way to settling the concrete in position or finishing the surface thereof unless otherwise specified, and SF accepts no liability for the slump strength quality or suitability of the concrete pumped by it, nor for any defects, inadequacy, or failing of foundations, formwork or any other part of the worksite, or the Client’s instructions, and may complete the Works without reporting any apparent defect or failing aforesaid.
8.7 The Works are provided in accordance with the Client’s instructions, and the Client accepts full responsibility for, and shall keep SF fully indemnified against, all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the provision of the Works by SF (howsoever arising and whether or not arising from any negligence, failure or omission of the Client). This indemnity shall not apply where it can be evidentially shown by the Client that such actions, proceedings, claims, etc. have arisen through a negligent act of SF or that the Works provided by SF are defective.
8.8 SF gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the Works such as:
(a) hairline cracking of paving and grout; or
(b) damage caused by contact with chemicals, solvents, oils or any other substances; or
(c) the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.
8.9 The Client acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Client.
8.10 SF shall not be liable for any defect in the Works if the Client does not follow SF’s recommendation to:
(a) water the concrete for a periodically to limit the risk of possible cracking due to weather conditions;
(b) no foot traffic and/or any vehicles on the concrete for a minimum of forty-eight (48) hours but preferably seven (7) days;
(c) no heavy furniture to be placed on the concrete area for a minimum of twenty-four (24) hours.
8.11 Where SF gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the worksite for the laying of concrete slabs, foundations or similar works and such advice or recommendations are not acted upon then SF shall require the Client or their agent to authorise commencement of the Works in writing. SF shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
8.12 The Client accepts that SF has no control over added colours once the product has touched the concrete.
8.13 No responsibility will be taken by SF for any possible capillary action of water, sealants, fluids, rising damp or contaminants within the concrete or stone during the grinding and sealing process.
8.14 Contaminated and stained concrete can affect the sealants adhesion and life span, due to unknown contaminations. No responsibility will be taken by SF under these circumstances.
8.15 Whilst SF will take all due care to avoid contamination of the finished surface, SF accepts no responsibility for contamination by other trades people or natural contaminates such as dust, insects or hair which may be present at the worksite.
8.16 Timber is a natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst SF will make every effort to match sales samples to the finished Materials SF accepts no liability whatsoever where such samples differ to the finished Materials supplied.
8.17 Timber is a hydroscopic material subject to expansion and contraction, therefore SF will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods.
8.18 The Client acknowledges that Materials supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
9. Client’s Responsibilities
9.1 The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify SF against any costs incurred by SF as a consequence of such discovery. Under no circumstances will SF handle removal of asbestos product.
9.2 The Client acknowledges that it is their responsibility to ensure that all Materials, plant or equipment which SF is required to install (or to connect any of its Materials to) are of the correct type, size, rating, standard, quality, colour and finish, conform with all relevant Australian standards and local statutory requirements, and are as specified in the specifications, drawings and plans upon which SF based the quotation on and therefore, the Client agrees to indemnify SF against any costs incurred by SF in rectifying such errors if required.
9.3 SF may at its discretion notify the Client that it requires to store at the worksite materials, fittings and appliances, or plant and tools required for the works, in which event the Client shall supply SF a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Client’s responsibility.
9.4 The Client accepts and agrees to provide an appropriate area on the worksite for the purposes of washing out SF’s concrete pumping plant upon completion of the concrete pumping and for depositing all unused concrete and slurry that meets council, Environment Protection Act 1994 (QLD) and Protection of the Environment Operations Act 1997 (NSW) and/or regulation requirements. The Client further accepts this area must not allow for any leakage of slurry/water to roads, gutters or storm water drainage systems. In the event there is no such area available on the worksite the Client accepts that the concrete pumping plant will be taken elsewhere and an offsite wash out fee equivalent to one hour of hire of the relevant concrete pumping plant will be added to the Client’s invoice.
9.5 It is the intention of SF and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the Works to be undertaken (where in SF’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.
9.6 The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the Works and agrees that SF shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.
9.7 The Client shall be responsible for the protection of SF’s equipment during the provision of Works from the public and animals.
9.8 The Client shall ensure that the correct traffic and pedestrian measures are in place and council permits where applicable. Failure to do so will result in the Client becoming liable for any costs incurred to SF.
9.9 The Client shall provide and maintain, in position, effective screening to protect against damage caused by any malfunction of the pump or pipe line.
9.10 The Client further acknowledges that, in the case of high-rise jobs, the Client shall maintain and control all pipe line (according to the standards of the relevant code of practice) except SF’s lines between the pump and the stack.
10. Dimensions, Plans and Specifications
10.1 All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless SF and the Client agree otherwise in writing.
10.2 SF shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client
10.3 If the giving of an estimate or quotation for the supply of Materials involves SF estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of SF’s estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
10.4 Should the Client require any changes to SF’s estimated measurements and quantities, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.
11. Access
11.1 The Client shall ensure that SF has clear and free access to the worksite at all times to enable them to undertake the Works. SF 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 SF.
12. Underground Locations
12.1 Prior to SF commencing any work the Client must advise SF 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 site.
12.2 Whilst SF will take all care to avoid damage to any underground services the Client agrees to indemnify SF 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 12.1.
13. Compliance with Laws
13.1 The Client and SF 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.
13.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
13.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
14. Title
14.1 SF and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid SF all amounts owing to SF; and
(b) the Client has met all of its other obligations to SF.
14.2 Receipt by SF 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.
14.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 14.1:
(a) the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to SF on request.
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for SF and must pay to SF 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 SF shall be sufficient evidence of SF’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with SF 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 SF and must pay or deliver the proceeds to SF 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 SF and must sell, dispose of or return the resulting product to SF as it so directs.
(f) unless the Materials have become fixtures the Client irrevocably authorises SF to enter any premises where SF believes the Materials are kept and recover possession of the Materials.
(g) SF 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 SF.
(i) SF may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
15. Personal Property Securities Act 2009 (“PPSA”)
15.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
15.2 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 SF for Works – that have previously been supplied and that will be supplied in the future by SF to the Client.
15.3 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 SF 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 15.3(a)(i) or 15.3(a)(ii);
(b) indemnify, and upon demand reimburse, SF 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 SF;
(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 SF;
(e) immediately advise SF 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.
15.4 SF 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.
15.5 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.
15.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
15.7 Unless otherwise agreed to in writing by SF, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
15.8 The Client shall unconditionally ratify any actions taken by SF under clauses 15.3 to 15.5.
15.9 Subject to any express provisions to the contrary (including those contained in this clause 15) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
16. Security and Charge
16.1 In consideration of SF 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, 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).
16.2 The Client indemnifies SF from and against all SF’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SF’s rights under this clause.
16.3 The Client irrevocably appoints SF and each director of SF as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.
17. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
17.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify SF 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 SF to inspect the Materials or to review the Works provided.
17.2 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).
17.3 SF acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
17.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, SF makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. SF’s liability in respect of these warranties is limited to the fullest extent permitted by law.
17.5 If the Client is a consumer within the meaning of the CCA, SF’s liability is limited to the extent permitted by section 64A of Schedule 2.
17.6 If SF is required to replace any Materials under this clause or the CCA, but is unable to do so, SF may refund any money the Client has paid for the Materials.
17.7 If SF 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 SF 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.
17.8 If the Client is not a consumer within the meaning of the CCA, SF’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 SF at SF’s sole discretion;
(b) limited to any warranty to which SF is entitled, if SF did not manufacture the Materials;
(c) otherwise negated absolutely.
17.9 Subject to this clause 17, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 17.1; and
(b) SF 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.
17.10 Notwithstanding clauses 17.1 to 17.9 but subject to the CCA, SF 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 SF’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by SF;
(f) fair wear and tear, any accident, or act of God.
17.11 SF may in its absolute discretion accept non-defective Materials for return in which case SF may require the Client to pay handling fees of up to twenty-five percent (25%) of the value of the returned Materials plus any freight costs.
17.12 Notwithstanding anything contained in this clause if SF is required by a law to accept a return then SF will only accept a return on the conditions imposed by that law.
18. Intellectual Property
18.1 Where SF 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 SF, and shall only be used by the Client at SF’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of SF.
18.2 The Client warrants that all designs, specifications or instructions given to SF will not cause SF to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify SF against any action taken by a third party against SF in respect of any such infringement.
18.3 The Client agrees that SF may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which SF has created for the Client.
19. Default and Consequences of Default
19.1 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 SF’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
19.2 If the Client owes SF any money the Client shall indemnify SF from and against all costs and disbursements incurred by SF in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SF’s contract default fee, and bank dishonour fees).
19.3 Further to any other rights or remedies SF may have under this contract, if a Client has made payment to SF, 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 SF under this clause 19 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.
19.4 Without prejudice to SF’s other remedies at law SF shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SF shall, whether or not due for payment, become immediately payable if:
(a) any money payable to SF becomes overdue, or in SF’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 SF;
(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.
20. Cancellation
20.1 Without prejudice to any other remedies SF may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions SF may suspend or terminate the supply of Works to the Client. SF will not be liable to the Client for any loss or damage the Client suffers because SF has exercised its rights under this clause.
20.2 SF 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 SF shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to SF for Works already performed. SF shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.3 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 SF as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.4 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.
21. Privacy Policy
21.1 All emails, documents, images or other recorded information held or used by SF is Personal Information, as defined and referred to in clause 21.3, and therefore considered Confidential Information. SF 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”). SF acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by SF that may result in serious harm to the Client, SF 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.
21.2 Notwithstanding clause 21.1, privacy limitations will extend to SF in respect of Cookies where transactions for purchases/orders transpire directly from SF’s website. SF 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 SF when SF sends an email to the Client, so SF may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, 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 proceeding with a purchase/order via SF’s website.
21.3 The Client agrees for SF 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 SF.
21.4 The Client agrees that SF 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.
21.5 The Client consents to SF being given a consumer credit report to collect overdue payment on commercial credit.
21.6 The Client agrees that personal credit information provided may be used and retained by SF 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.
21.7 SF 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.
21.8 The information given to the CRB may include:
(a) Personal Information as outlined in 21.3 above;
(b) name of the credit provider and that SF 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 SF has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of SF, 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).
21.9 The Client shall have the right to request (by e-mail) from SF:
(a) a copy of the Personal Information about the Client retained by SF and the right to request that SF correct any incorrect Personal Information ; and
(b) that SF does not disclose any Personal Information about the Client for the purpose of direct marketing.
21.10 SF 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.
21.11 The Client can make a privacy complaint by contacting SF via e-mail. SF 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.
22. Building Industry Fairness (Security of Payment) Act 2017 (QLD – Where applicable)
22.1 At SF’s sole discretion, if there are any disputes or claims for unpaid Works and/or Materials then the provisions of the Building Industry Fairness (Security of Payment) Act 2017 may apply.
22.2 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building Industry Fairness (Security of Payment) Act 2017 of Queensland, except to the extent permitted by the Act where applicable.
23. Building and Construction Industry Security of Payments Act 1999 (NSW – Where applicable)
23.1 At SF’s sole discretion, if there are any disputes or claims for unpaid Works and/or Materials then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
23.2 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 Payments Act 1999 of New South Wales, 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 SF may have notice of the Trust, the Client covenants with SF 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 SF (SF 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 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.
26.2 This Contract shall be governed by the laws of either New South Wales or Queensland in which state the Works and/or Materials were provided by the Contractor to the Client however, in the event of a dispute that deems necessary for the matter to be referred to a Magistrates or higher Court then jurisdiction will be subject to the courts in Queensland in which the Contractor has its principal place of business.
26.3 Subject to clause 17, SF 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 SF of these terms and conditions (alternatively SF’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
26.4 SF may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
26.5 The Client cannot licence or assign without the written approval of SF.
26.6 SF 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 SF’s sub-contractors without the authority of SF.
26.7 The Client agrees that SF 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 SF to provide Works to the Client.
26.8 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.
26.9 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.
