Rockingham Glass â€“ Terms & Conditions of Trade
Â© Copyright â€“ EC Credit Control 1999 - 2018 # 17319Â
1.1 â€œRockingham Glassâ€ means Reads West Coast Maintenance Pty Ltd T/A Rockingham Glass, its successors and assigns or any person acting on behalf of and with the authority of Reads West Coast Maintenance Pty Ltd T/A Rockingham Glass.
1.2Â â€œClientâ€ means the person/s or any person acting on behalf of and with the authority of the Client requesting Rockingham Glass 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 part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Clientâ€™s executors, administrators, successors and permitted assigns.
1.3 â€œWorksâ€ means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by Rockingham Glass to the Client at the Clientâ€™s request from time to time (where the context so permits the terms â€˜Worksâ€™ or â€˜Materialsâ€™ shall be interchangeable for the other).
1.4 â€œPriceâ€ means the Price payable (plus any GST where applicable) for the Works as agreed between Rockingham Glass and the Client in accordance with clause 5 below.
1.5 â€œGSTâ€ means Goods and Services Tax as defined within the â€œA New Tax System (Goods and Services Tax) Act 1999â€ (Cth).
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 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 contract between the Client and Rockingham Glass.
2.3 The Client acknowledges and agrees that any quotation offered by Rockingham Glass to the Client, unless expressly agreed to between Rockingham Glass and the Client, shall exclude:
(a) any structural alterations to the building; and
(b) any alterations to the Clientâ€™s and or Clientâ€™s approved company design or specifications necessary to satisfy the requirements of local government authorities; and
(c) any installation of electrical or plumbing services or alterations to the same; and
(d) any painting work required.
2.4 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 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 Rockingham Glass 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 Rockingham Glass 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 Rockingham Glass 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 Rockingham Glass; 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 Rockingham Glass 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 Clientâ€™s details (including but not limited to, changes in the Clientâ€™s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by Rockingham Glass as a result of the Clientâ€™s failure to comply with this clause.
5. Price and Payment
5.1 At Rockingham Glassâ€™ sole discretion the Price shall be either:
(a) as indicated on invoices provided by Rockingham Glass to the Client in respect of Works performed or Materials supplied; or
(b) Rockingham Glassâ€™ quoted Price (subject to clause 5.2) which shall be binding upon Rockingham Glass provided that the Client shall accept Rockingham Glassâ€™ quotation in writing within thirty (30) days.
5.2 Rockingham Glass 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, availability of machinery, safety considerations, incorrect measurements being provided by the Client, prerequisite work by any third party not being completed, changes to design, the presence of rot or other defects in the existing structure etc) which are only discovered on commencement of the Works; or
(d) in the event of increases to Rockingham Glass in the cost of labour or Materials which are beyond Rockingham Glassâ€™ control.
5.3 Variations will be charged for on the basis of Rockingham Glassâ€™ quotation, and will be detailed in writing, and shown as variations on Rockingham Glassâ€™ invoice. The Client shall be required to respond to any variation submitted by Rockingham Glass within ten (10) working days. Failure to do so will entitle Rockingham Glass 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 Rockingham Glassâ€™ sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Rockingham Glass, which may be:
(a) on completion of the Works; or
(b) for certain approved Clients, due thirty (30) days following the date of invoice;
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Rockingham Glass.
5.6 Payment may be made by cash, 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 Rockingham Glass.
5.7 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 Rockingham Glass 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 Client must pay to Rockingham Glass an amount equal to any GST Rockingham Glass must pay for any supply by Rockingham Glass 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.
6. Provision of the Works
6.1 Subject to clause 6.2 it is Rockingham Glassâ€™ responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2 The Worksâ€™ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Rockingham Glass claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Rockingham Glassâ€™ 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 Rockingham Glass that the site is ready.
6.3 At Rockingham Glassâ€™ sole discretion, the cost of delivery is included in the Price.
6.4 Rockingham Glass 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.
6.5 Any time specified by Rockingham Glass for delivery of the Works is an estimate only and Rockingham Glass 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 Rockingham Glass is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Rockingham Glass 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.
7.1 If Rockingham Glass retains ownership of the Materials under clause 12 then:
(a) where Rockingham Glass 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 Clientâ€™s nominated carrier takes possession of the Materials at Rockingham Glassâ€™ address; or
(ii) the Materials are delivered by Rockingham Glass or Rockingham Glassâ€™ nominated carrier to the Clientâ€™s nominated delivery address (even if the Client is not present at the address).
(b) where Rockingham Glass is to both supply and install Materials then Rockingham Glass 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.
7.2 In the event the Client supplies information relating to measurements and quantities of Materials required in completing the Works, it shall be the Clientâ€™s responsibility to verify the accuracy of the measurements and quantities, before the Client or Rockingham Glass places an order based on these measurements and quantities. Rockingham Glass accepts no responsibility for any loss, damages, or costs however resulting from the Clientâ€™s failure to comply with this clause.
7.3 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials. If, for any reason (including the discovery of asbestos), Rockingham Glass reasonably forms the opinion that the Clientâ€™s premises are not safe for the installation of Materials to proceed then Rockingham Glass shall be entitled to delay installation of the Materials until Rockingham Glass is satisfied that it is safe for the installation to proceed.
7.4 The Client acknowledges that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Rockingham Glass 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.
7.5 Whilst Rockingham Glass will make every effort to match sales samples to the finished Materials Rockingham Glass accepts no liability whatsoever where such samples differ to the finished Materials supplied.
7.6 Holes, cut outs and cutting of the Materials may weaken the strength of the Materials and although itâ€™s unlikely, cracking may occur. Rockingham Glass 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.
7.7 The Client acknowledges that where an anodised surface frame 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 deem to be a defect in the Materials.
7.8 Whilst Rockingham Glass will take all due care during installation Rockingham Glass will not accept any responsibility for damage to surrounding surfaces during installation.
7.9 The application of paint on the Materials can reveal small defects in the glass that occur during the manufacture and processing of the Materials. Rockingham Glass shall not be liable for such defects which can include small scratches, scuffs, seeds and/or toughening roller.
7.10 Materials may be subject to a plus or minus two millimetre (+/- 2mm) tolerance due to variation in glass thickness and small waves that may result from the toughening process used to produce the Materials. Such variations may be more visible in darker coloured Materials. Rockingham Glass offers no guarantee against defects of this nature.
7.11 The Client accepts that where installation occurs to adjoining glass panes or weakened surfaces (including, but not limited to flashings, frames, render or plaster), that whilst Rockingham Glass shall exercise due care, cracks or scratches may occur in such surrounding surfaces or panes. Rockingham Glass shall not be held liable where such damage occurs.
7.12 The Client acknowledges that Materials supplied may:
(a) expand, contract or distort as a result of exposure to heat, cold, weather; and
(b) mark or stain if exposed to certain substances; and
(c) be damaged or disfigured by impact or scratching.
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 Materials 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 Rockingham Glass. Whilst Rockingham Glass supplies products in accordance with specific manufacturing standards, it is the Clientâ€™s responsibility to ensure that the Materials comply with the requirements of the applicable Australian Standards.
8.2 All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless Rockingham Glass and the Client agree otherwise in writing.
9.1 The Client shall ensure that Rockingham Glass has clear and free access to the work site at all times to enable them to undertake the Works. Rockingham Glass 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 Rockingham Glass.
9.2 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, hoists or other lifting equipment as may be deemed necessary by Rockingham Glass.
10. Underground Locations
10.1 Where applicable, prior to Rockingham Glass commencing any work the Client must advise Rockingham Glass of the precise location of all underground services on the work site and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the work site.
10.2 Whilst Rockingham Glass will take all care to avoid damage to any underground services the Client agrees to indemnify Rockingham Glass 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 10.1.
11. Compliance with Laws
11.1 The Client and Rockingham Glass 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.
11.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
11.3 The Client agrees that the work site will comply with any WorkSafe WA laws relating to building/construction sites and any other relevant safety standards or legislation.
12.1 Rockingham Glass and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid Rockingham Glass all amounts owing to Rockingham Glass; and
(b) the Client has met all of its other obligations to Rockingham Glass.
12.2 Receipt by Rockingham Glass 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 until ownership of the Materials passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Rockingham Glass on request;
(b) the Client holds the benefit of the Clientâ€™s insurance of the Materials on trust for Rockingham Glass and must pay to Rockingham Glass 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 Rockingham Glass shall be sufficient evidence of Rockingham Glassâ€™ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Rockingham Glass 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 Rockingham Glass and must pay or deliver the proceeds to Rockingham Glass 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 Rockingham Glass and must sell, dispose of or return the resulting product to Rockingham Glass as it so directs;
(f) unless the Materials have become fixtures the Client irrevocably authorises Rockingham Glass to enter any premises where Rockingham Glass believes the Materials are kept and recover possession of the Materials;
(g) Rockingham Glass 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 Rockingham Glass;
(i) Rockingham Glass may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
13. Personal Property Securities Act 2009 (â€œPPSAâ€)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 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) â€“ being a monetary obligation of the Client to Rockingham Glass for Works â€“ that have previously been supplied and that will be supplied in the future by Rockingham Glass 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 Rockingham Glass 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, Rockingham Glass 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 Rockingham Glass;
(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 Rockingham Glass;
(e) immediately advise Rockingham Glass 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.
13.4 Rockingham Glass 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 hereby waives its 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 its 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 Rockingham Glass, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Client shall unconditionally ratify any actions taken by Rockingham Glass under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), 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
14.1 In consideration of Rockingham Glass 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).
14.2 The Client indemnifies Rockingham Glass from and against all Rockingham Glassâ€™ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Rockingham Glassâ€™ rights under this clause.
14.3 The Client irrevocably appoints Rockingham Glass and each director of Rockingham Glass as the Clientâ€™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 Clientâ€™s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify Rockingham Glass 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 Rockingham Glass to inspect the Materials or to review the Works provided.
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 Rockingham Glass acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Rockingham Glass makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. Rockingham Glassâ€™ 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, Rockingham Glassâ€™ liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If Rockingham Glass is required to replace any Materials under this clause or the CCA, but is unable to do so, Rockingham Glass may refund any money the Client has paid for the Materials.
15.7 If Rockingham Glass 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 Rockingham Glass 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.
15.8 If the Client is not a consumer within the meaning of the CCA, Rockingham Glassâ€™ 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 Rockingham Glass at Rockingham Glassâ€™ sole discretion;
(b) limited to any warranty to which Rockingham Glass is entitled, if Rockingham Glass did not manufacture the Materials;
(c) otherwise negated absolutely.
15.9 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) Rockingham Glass has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Clientâ€™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.
15.10 Notwithstanding clauses 15.1 to 15.9 but subject to the CCA, Rockingham Glass 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 Rockingham Glassâ€™ prior approval;
(e) the Client failing to follow any instructions or guidelines provided by Rockingham Glass;
(f) fair wear and tear, any accident, or act of God.
15.11 In the case of second hand Material, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Rockingham Glass as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Rockingham Glass has agreed to provide the Client with the second hand Materials and calculated the Price of the second hand Materials in reliance of this clause 15.11.
15.12 Rockingham Glass may in its absolute discretion accept non-defective Materials for return in which case Rockingham Glass may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.
15.13 Notwithstanding anything contained in this clause if Rockingham Glass is required by a law to accept a return then Rockingham Glass will only accept a return on the conditions imposed by that law.
16. Default and Consequences of Default
16.1 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 Rockingham Glassâ€™ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes Rockingham Glass any money the Client shall indemnify Rockingham Glass from and against all costs and disbursements incurred by Rockingham Glass in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Rockingham Glassâ€™ contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies Rockingham Glass may have under this contract, if a Client has made payment to Rockingham Glass, 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 Rockingham Glass under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Clientâ€™s obligations under this contract.
16.4 Without prejudice to Rockingham Glassâ€™ other remedies at law Rockingham Glass shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Rockingham Glass shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Rockingham Glass becomes overdue, or in Rockingham Glassâ€™ 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 Rockingham Glass;
(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.
17.1 Without prejudice to any other remedies Rockingham Glass may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Rockingham Glass may suspend or terminate the supply of Works to the Client. Rockingham Glass will not be liable to the Client for any loss or damage the Client suffers because Rockingham Glass has exercised its rights under this clause.
17.2 Rockingham Glass 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 Rockingham Glass shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Rockingham Glass for Works already performed. Rockingham Glass shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 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 Rockingham Glass as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.4 Cancellation of orders for products made to the Clientâ€™s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18. Privacy Act 1988
18.1 The Client agrees for Rockingham Glass 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 Rockingham Glass.
18.2 The Client agrees that Rockingham Glass 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 Clientâ€™s repayment history in the preceding two (2) years.
18.3 The Client consents to Rockingham Glass being given a consumer credit report to collect overdue payment on commercial credit.
18.4 The Client agrees that personal credit information provided may be used and retained by Rockingham Glass 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 Clientâ€™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.
18.5 Rockingham Glass 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.
18.6 The information given to the CRB may include:
(a) personal information as outlined in 18.1 above;
(b) name of the credit provider and that Rockingham Glass 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 Clientâ€™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 Rockingham Glass has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Rockingham Glass, the Client has committed a serious credit infringement;
(h) advice that the amount of the Clientâ€™s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.7 The Client shall have the right to request (by e-mail) from Rockingham Glass:
(a) a copy of the information about the Client retained by Rockingham Glass and the right to request that Rockingham Glass correct any incorrect information; and
(b) that Rockingham Glass does not disclose any personal information about the Client for the purpose of direct marketing.
18.8 Rockingham Glass will destroy personal information upon the Clientâ€™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.
18.9 The Client can make a privacy complaint by contacting Rockingham Glass via e-mail. Rockingham Glass 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.
19. Service of Notices
19.1 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 partyâ€™s last known email address.
19.2 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.
20.1 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 (â€œTrustâ€) then whether or not Rockingham Glass may have notice of the Trust, the Client covenants with Rockingham Glass 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 Rockingham Glass (Rockingham Glass 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.
21. Dispute Resolution
21.1 If 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.
22.1 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 partyâ€™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.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which Rockingham Glass has its principal place of business, and are subject to the jurisdiction of the Rockingham Courts in Western Australia.
22.3 Subject to clause 15, Rockingham Glass 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 Rockingham Glass of these terms and conditions (alternatively Rockingham Glassâ€™ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
22.4 Rockingham Glass may licence and/or assign all or any part of its rights and/or obligations under this contract without the Clientâ€™s consent.
22.5 The Client cannot licence or assign without the written approval of Rockingham Glass.
22.6 Rockingham Glass 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 Rockingham Glassâ€™ sub-contractors without the authority of Rockingham Glass.
22.7 The Client agrees that Rockingham Glass may amend these terms and conditions by notifying 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 Rockingham Glass to provide Works to the Client.
22.8 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.
22.9 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.