Terms Of Trade
Twights Plumbing Pty Ltd – Terms & Conditions of Trade
1.1 “TP” means Twight’s Plumbing Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Twight’s Plumbing Pty Ltd.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting TP 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 Client’s executors, administrators, successors and permitted assigns.
1.3 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by TP 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).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between TP and the Client in accordance with clause 6 below.
1.5 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (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 TP.
2.3 In the event that the Materials and/or Works provided by TP 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 company and agrees to honour their obligation for payment for such transactions invoiced by TP and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
2.4 In the event that the Materials and/or Works provided by TP are the subject to payment on behalf of the Client via a third party (including, but not limited to, property owners), irrespective of this clause, the Client acknowledges that at all times they will be responsible for the payment of any monies and agree to honour their obligation for payment in the event that the third party fails to make payment on behalf of the Client.
2.5 Where TP gives advice, recommendations, information, assistance or service to the Client or the Clients agent, regarding the Materials or Works then it is given in good faith and TP shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Client relying on the same.
2.6 Where the Client specifically instructs TP to clear a branch drain or section of drain only, then any warranty will only apply to sections cleared and not to any other section of drain.
2.7 Where the plumbing or drainage Works specifically referred to in a quotation or on an invoice includes stormwater or sewer drainage cleaning by devices such as an electric eel, the Client:
(a) acknowledges that they have been informed that the use of the device may damage or destroy the drainage pipes;
(b) agrees that where such damage or destruction of the pipes occurs then any repairs or rectification shall be at the Client’s cost and as such shall indemnify TP against all costs; and
(c) if during the course of drain clearing works, that TP’s equipment is caught, jammed, or broken off in the drain that any costs incurred by TP for the recovery of the equipment shall be the Client’s responsibility.
2.8 In the event that TP is required to provide the Works urgently, that may require TP’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then TP reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between TP and the Client.
2.9 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that TP 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 TP 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 TP 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 TP; 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 TP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by TP as a result of the Client’s failure to comply with this clause.
5.1 The Client acknowledges that the removal of excess soil excavated from the worksite during the Works and removal of debris is not included in the contract. TP will however, leave the worksite in a tidy manner.
5.2 The Client accepts that quotations:
(a) are based on good soil conditions only with the discovery of rock after commencement of the Works, removal of such rock, tree roots, water and unstable ground will be considered as variations to the quotation as per clause 6.2; and
(b) do not include the replacement of concrete, paving, slabs or landscaping.
6. Price and Payment
6.1 At TP’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by TP to the Client in respect of Works performed or Materials supplied; or
(b) TP’s quoted Price (subject to clause 6.2) which shall be binding upon TP provided that the Client shall accept TP’s quotation in writing within sixty (60) days.
6.2 TP reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, hard rock or other obscured barriers below the surface, latent soil conditions, dewatering, iron reinforcing rods in concrete, poor weather conditions, limitations to accessing the site, unknown wall cavities, availability of machinery, safety considerations including the discovery of asbestos, prerequisite work by a third party not being completed, ground works, water tables, change of design, or hidden pipes and wiring underground or in walls, etc.) which are only discovered on commencement of the Works; or
(d) in the event of increases to TP in the cost of labour or materials which are beyond TP’s control.
6.3 Variations will be charged for on the basis of TP’s quotation, and will be detailed in writing, and shown as variations on TP’s invoice. The Client shall be required to respond to any variation submitted by TP within ten (10) working days. Failure to do so will entitle TP 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 TP’s sole discretion a non-refundable deposit may be required.
6.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by TP, which may be:
(a) on completion of the Works; or
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is either thirty (30) days or seven (7) days following the date of any invoice given to the Client by TP.
6.6 No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, TP reserves the right to treat all retentions as placing the Client’s account into default.
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 TP.
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 TP 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 TP an amount equal to any GST TP must pay for any supply by TP 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 TP’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 TP claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond TP’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 TP that the site is ready.
7.3 TP 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 TP for delivery of the Works is an estimate only and TP 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 TP is unable to supply the Works as agreed solely due to any action or inaction of the Client, then TP 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. Sewer Conversions
8.1 Unless otherwise stated, the payment of any fees due to Water Corporation for sewer connection is included.
8.2 A Certificate of Compliance shall be provided on completion of the Works where applicable.
8.3 Placement of sewer pipes shall be quoted to a depth of one point three metres (1.3m) only. Where the required depth is greater than this, then any additional costs will be charged as a variation as per clause 6.2.
8.4 Where septic tanks and/or wells are required to be either pumped out and/or backfilled, then such work shall be the Client’s responsibility to arrange and pay for.
9.1 If TP retains ownership of the Materials under clause 15 then:
(a) where TP 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. At TP’s sole discretion the cost of delivery is included in the Price. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by TP or TP’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address);
(b) where TP is to both supply and install Materials then TP 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.
9.2 TP 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, TP accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.3 The Client acknowledges that the presence of plant or tree root growth and/or other blockages may indicate damaged pipe work and therefore where TP is requested to merely clear such blockages, TP can offer no guarantee against reoccurrence or further damage. In the event of collapse during the pipe clearing process, TP will immediately advise the Client of the same and shall provide the Client with an estimate for the full repair of the damaged pipe work.
9.4 The Client acknowledges and agree that where TP has performed temporary repairs that:
(a) TP offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(b) TP will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required.
9.5 The Client acknowledges that TP is only responsible for parts that are replaced by TP and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Client agrees to indemnify TP against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising.
9.6 Where the Client has supplied goods for TP to complete the Works, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the goods. TP shall not be responsible for any defects in the goods, any loss or damage to the Works (or any part thereof), howsoever arising from the use of goods supplied by the Client.
9.7 The Client warrants that:
(a) any structures or foundations to which the Materials are to be affixed are able to withstand the installation thereof and that any plumbing connections (including, but not limited to, pipes, couplings and valves) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe plumbing or latent or unfavourable soil conditions such as liquefaction residue or risk) that TP, or TP’s employees, reasonably form the opinion that the Client’s premises is not safe for the Works to proceed then TP shall be entitled to delay the provision of the Works (in accordance with the provisions of clause 7.2 above) until TP is satisfied that it is safe for the installation to proceed; and
(b) any existing plumbing and/or associated services in or upon the worksite that is subject to the Materials and/or Works is in compliance with regulations. TP reserves the right to halt all Works (in accordance with the provisions of clause 7.2 above) if in their opinion the worksite is unsafe and/or the current positioning of the unit is illegal due to not meeting the required clearances then the Client will be informed of this and will be given a revised quotation or estimate to install the new appliance in a safe and legal position. Should the Client not wish to proceed TP will charge a standard fee for the time spent on worksite based on TP’s quotation.
9.8 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; and
(e) create undesirable smells caused by a system as a result of its normal operation.
10. Client’s Acknowledgements and Responsibilities
10.1 The Client acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in TP’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by TP;
(b) while TP may have provided information or figures to the Client regarding the performance of the Materials, the Client acknowledges that TP has given these in good faith, and are estimates based on Clean Energy Council (CEC), Water Efficiency Labelling and Standards (WELS) scheme and/or industry prescribed estimates. The water efficiency may be less than estimates due to factors out of TP’s control (including, but not limited to, water pressure, water source, the mineral content of water based on geographical location, etc.).
10.2 If TP notifies the Client that it intends to store onsite Materials, plant, equipment or tools to be used in performance of the Works, then the Client shall designate an area for storage and shall take all reasonable precautions to protect such items against destruction, damage, or theft. In the event that such items are destroyed, damaged or stolen then the cost of replacement shall be added to the contract Price and will be shown as a variation as per clause 6.2.
10.3 The Client shall be responsible for ensuring that the Materials ordered are suitable for their intended use.
10.4 The Client agrees to:
(a) remove any furniture, furnishings or personal goods from the vicinity of the Works and agrees that TP shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.
(b) allocate an area (per level) for the accumulation and removal of any rubbish created from the provision of the Works by TP.
11. Access and Underground Locations
11.1 The Client shall ensure that TP has clear and free access to the worksite at all times to enable them to undertake the Works. TP 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 TP.
11.2 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by TP.
11.3 Unless otherwise agreed in writing between the Client and TP it shall be the Client’s responsibility to advise the precise location of all underground services on the site and clearly mark the same
11.4 If the Client requests TP to engage a service locator then this shall be in addition to the Price and “Dial Before You Dig” must be consulted and any potential underground services marked on site.
11.5 Whilst TP will take all care to avoid damage to any underground services the Client agrees to indemnify TP 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 and notified as per clause 11.3.
12. Compliance with Laws
12.1 Both the Client and TP agree that they will at all times ensure that they comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including occupational health and safety laws relating to building/construction sites, and any other relevant safety standards or legislation, particularly those in relation to Asbestos/Hazardous Materials and the safe removal and disposal of the same.
12.2 TP shall only supply and connect to Australian-approved equipment. All plumbing Materials must be ‘Watermark” approved and all gas pipework must be compliance tested prior to commencing any work on the gas system.
12.3 The Client shall obtain (at the expense of the Client) all licenses and approvals (including local Government approvals) that may be required for the Works, unless otherwise agreed. In the event that TP is instructed to arrange said licences and/or permits on behalf of the Client, then all associated such charges will be invoiced in accordance with clause 6.2.
13. Surplus Materials
13.1 Unless otherwise stated elsewhere in this contract:
(a) demolished Materials remain the Client’s property; and
(b) Materials which TP brings to the site which are surplus remain the property of TP.
14.1 TP shall have public liability insurance of at least five million dollars ($5m). It is the Client’s responsibility to ensure that they are similarly insured.
15.1 TP and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid TP all amounts owing to TP; and
(b) the Client has met all of its other obligations to TP.
15.2 Receipt by TP 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.
16. Personal Property Securities Act 2009 (“PPSA”)
16.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
16.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials and/or collateral (account) – being a monetary obligation of the Client to TP for Works – that have previously been supplied and that will be supplied in the future by TP to the Client.
16.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TP 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 i or ii;
(b) indemnify, and upon demand reimburse, TP 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 TP;
(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 TP;
(e) immediately advise TP of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
16.4 TP and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
16.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
16.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
16.7 Unless otherwise agreed to in writing by TP, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
16.8 The Client shall unconditionally ratify any actions taken by TP under clauses 16.3 to 16.5.
16.9 Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
17. Security and Charge
17.1 In consideration of TP 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).
17.2 The Client indemnifies TP from and against all TP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising TP’s rights under this clause.
18. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
18.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify TP 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 TP to inspect the Materials or to review the Works provided.
18.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
18.3 TP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
18.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, TP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. TP’s liability in respect of these warranties is limited to the fullest extent permitted by law.
18.5 If the Client is a consumer within the meaning of the CCA, TP’s liability is limited to the extent permitted by section 64A of Schedule 2.
18.6 If TP is required to replace any Materials under this clause or the CCA, but is unable to do so, TP may refund any money the Client has paid for the Materials.
18.7 If TP 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 TP may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
18.8 If the Client is not a consumer within the meaning of the CCA, TP’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 TP at TP’s sole discretion;
(b) limited to any warranty to which TP is entitled, if TP did not manufacture the Materials;
(c) otherwise negated absolutely.
18.9 Subject to this clause 18, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 18.1; and
(b) TP has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
18.10 Notwithstanding clauses 18.1 to 18.9 but subject to the CCA, TP 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 TP’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by TP;
(f) fair wear and tear, any accident, or act of God.
18.11 In the case of second hand Materials, 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 TP 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 TP 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 18.11.
18.12 TP may in its absolute discretion accept non-defective Materials for return in which case TP may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.
18.13 Notwithstanding anything contained in this clause if TP is required by a law to accept a return then TP will only accept a return on the conditions imposed by that law.
18.14 The Client accepts that any warranty that may apply shall be provided once any outstanding monies owed by the Client are receipted and cleared.
19. Intellectual Property
19.1 Where TP 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 TP, and shall only be used by the Client at TP’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of TP.
19.2 The Client warrants that all designs, specifications or instructions given to TP will not cause TP to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify TP against any action taken by a third party against TP in respect of any such infringement.
19.3 The Client agrees that TP may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which TP has created for the Client.
20. Default and Consequences of Default
20.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at TP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Client owes TP any money the Client shall indemnify TP from and against all costs and disbursements incurred by TP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TP’s contract default fee, and bank dishonour fees).
20.3 Further to any other rights or remedies TP may have under this contract, if a Client has made payment to TP, 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 TP under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
20.4 Without prejudice to TP’s other remedies at law TP shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TP shall, whether or not due for payment, become immediately payable if:
(a) any money payable to TP becomes overdue, or in TP’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 TP;
(c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
21.1 Without prejudice to any other remedies TP may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions TP may suspend or terminate the supply of Works to the Client. TP will not be liable to the Client for any loss or damage the Client suffers because TP has exercised its rights under this clause.
21.2 TP 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 TP shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to TP for Works already performed. TP shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by TP as a direct result of the cancellation (including, but not limited to, any loss of profits).
21.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
22. Privacy Act 1988
22.1 The Client agrees that personal information provided by the Client (e.g. name, address, date of birth, occupation, etc.) may be used and retained by TP for the provision of Works (and for other agreed purposes or required thereby).
22.2 The Client shall have the right to request (by e-mail) from TP:
(a) a copy of the information about the Client retained by TP and the right to request that TP correct any incorrect information; and
(b) that TP does not disclose any personal information about the Client for the purpose of direct marketing.
22.3 TP 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.
22.4 The Client can make a privacy complaint by contacting TP via e-mail. TP 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.
22.5 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Privacy Act 1988 except to the extent permitted by that Act where applicable .
23. Unpaid Seller’s Rights
23.1 Where the Client has left any item with TP for repair, modification, exchange or for TP to perform any other service in relation to the item and TP has not received or been tendered the whole of any monies owing to it by the Client, TP shall have, until all monies owing to TP 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.
23.2 The lien of TP shall continue despite the commencement of proceedings, or judgment for any monies owing to TP having been obtained against the Client.
24. Dispute Resolution
24.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, arbitration in accordance with the Commercial Arbitration Act 2010 or its replacement(s).
25. Construction Contracts Act 2004
25.1 At TP’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Construction Contracts Act 2004 may apply.
25.2 Nothing in this contract is intended to have the effect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia, except to the extent permitted by the Act where applicable.
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 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which TP has its principal place of business, and are subject to the jurisdiction of the Rockingham Courts in Western Australia.
26.3 Subject to clause 18, TP 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 TP of these terms and conditions (alternatively TP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
26.4 TP 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 TP.
26.6 TP 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 TP’s sub-contractors without the authority of TP.
26.7 The Client agrees that TP 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 TP 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.
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