Terms & Conditions of TRADE
Blu Sky I.T. Pty Ltd T/A Blue Sky IT Consulting
1.1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Consultant to provide the Services 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 on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors, and permitted assigns.
1.2 "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.
1.3 “Consultant” means Blu Sky I.T. Pty Ltd T/A Blue Sky IT Consulting, its successors and assigns or any person acting on behalf of and with the authority of Blu Sky I.T. Pty Ltd T/A Blue Sky IT Consulting.
1.4 “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.
1.5 “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 using the Consultant’s 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 making enquiries via the website.
1.6 “Goods” means all Goods (including, but not limited to, any content, files, information, printed or virtual material, data, hardware, software or applications (whether supplied from a third party software development company or where custom developed or programmed for the Client)), or Services (including, but not limited to, any advice or recommendations, consultancy, monitoring, data back-up or storage, strategising and analytical services, technical service, support and training, repairs, or installation of Goods, etc.) supplied by the Consultant to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.7 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.8 “Live Date” means the date in which the Consultant provides the Support Services as per initial acceptance of the Consultant’s quotation.
1.9 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Consultant and the Client in accordance with clause 6 below.
1.10 “Prohibited Content” means any content on any media (including advertising, posts, comments, etc.) that:
(a) are, or could reasonably be considered to be, in breach of the Broadcasting Services Act 1992; the Fair Trading Acts of the applicable States and Territories of Australia and the Competition and Consumer Act 2010 (CCA); or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
1.11 “Service Agreement” means the Service Agreement payable for the Services as agreed between the Consultant and the Client in accordance with clause 6 below.
1.12 “SNT” means any Social Network Tool being a social media platform and/or application which is accessible on the internet through the World Wide Web, and which provides multimedia content via a graphical user interface (including, but not limited to Facebook, Twitter, LinkedIn, Pinterest, etc.).
1.13 “Support” means to provide direct support to the Client for technical issues. Support includes the following Services:
(a) attending onsite at the Client’s premises;
(b) any time spent to resolve any issues with the Client’s computer system created by any operator error on the part of the Client or any action of any third parties whether authorised or unauthorised by the Client;
(c) resolving any issues which are solely caused by the actions of third parties and originate outside of the Client’s computer system e.g. problems that relate to the supply of services by the Client’s internet service provider.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 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 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with the Consultant and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Consultant reserves the right to refuse delivery.
2.6 None of the Consultant’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Blue Sky I.I Pty Ltd in writing nor is the Consultant bound by any such unauthorised statements.
2.7 Once accepted by the Client, the Consultant’s quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, the Consultant shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
2.8 Any advice, recommendation, information, assistance or service provided by the Consultant in relation to Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on the Consultant’s own knowledge and experience and shall be accepted without liability on the part of the Consultant. Where such advice or recommendations are not acted upon then the Consultant shall require the Client or their agent to authorise commencement of the Services in writing. The Consultant shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.9 In the event that the Client requests the Consultant to provide the Services urgently and there is no Service Agreement in place, that may require the Consultant’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then the Consultant reserves the right to charge the Client additional labour costs (penalty rates will apply at time and a half normal rates), unless otherwise agreed between the Consultant and the Client.
2.10 These terms and conditions may be meant to be read in conjunction with the Consultant’s Hire Form, and where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment, as defined therein.
2.11 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 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 the Consultant 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 the Consultant 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 the Consultant in respect of the Services.
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 the Consultant; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
3.3 In circumstances where the Client is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) ("Client Error"). The Client must pay for all Goods it orders from the Consultant notwithstanding that such Goods suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Goods. The Consultant is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.
4. Change in Control
4.1 The Client shall give the Consultant 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 the Consultant as a result of the Client’s failure to comply with this clause.
5. Fixed Term Contracts
5.1 Where this Contract is for ongoing Services, the commencement date shall be the date of the first Delivery of the Services under a Service Agreement or from the date of signing, whichever, is the earlier. A Service Agreement shall be for the period (‘initial term”) as agreed between both parties and shall revert to a month-to-month basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least thirty (30) days required notice as defined in the Service Agreement prior to the expiration date of the initial term or any additional term.
5.2 The Client acknowledges and accepts that all fixed Contracts are subject to periodic Price reviews to allow for increases to the Consultant in the cost of labour and materials (including, but not limited to, movement in the Consumer Price Index (CPI), which are beyond the control of the Consultant.
6. Price and Payment
6.1 At the Consultant’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Consultant to the Client; or
(b) the Consultant’s quoted Price (subject to clause 6.2)
(c) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days; or
(d) as per the Consultant’s set non-refundable monthly charges for the Services (“Service Agreement”), which will be as stipulated (including when due and payable) by the Consultant in the Service Agreement.
6.2 Additional and/or Varied Services:
(a) the Consultant agrees that there may be charges in the preparation of the initial quotation, which may include Client discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at the Consultant’s sole discretion) which will be charged for on the basis of the Consultant’s standard hourly rates (and double such rate for any Services provided outside the Consultant’s normal business hours); and
(b) the Consultant reserves the right to amend the Price:
(i) if a variation to the Goods which are to be supplied is requested; or
(ii) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the site, service outages, delay in materials and/or other IT related circumstances etc.) which are only discovered on commencement of the Services; or
(iii) as a result of increases beyond the Consultant’s reasonable control in the cost of materials or labour (e.g. third-party suppliers’ costs, transport, freight, insurance, duty, taxes and levies etc.), or due to currency exchange rates.
6.3 Variations will be charged for on the basis of the Consultant’s quotation, and will be detailed in writing, and shown as variations on the Consultant’s invoice. The Client shall be required to respond to any variation submitted by the Consultant within ten (10) working days. Failure to do so will entitle the Consultant 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 the Consultant’s sole discretion, a non-refundable deposit may be required.
6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Consultant, which may be:
(a) before delivery of the Goods;
(b) on completion of the Services;
(c) by way of instalments/progress payments in accordance with the Consultant’s payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Consultant.
6.6 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Consultant.
6.7 The Consultant may in its discretion allocate any payment received from the Client towards any invoice that the Consultant determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Consultant may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Consultant, payment will be deemed to be allocated in such manner as preserves the maximum value of the Consultant’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
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 the Consultant nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify the Consultant in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Consultant investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Consultant placing the Client’s account into default and subject to default interest in accordance with clause 18.1.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Consultant an amount equal to any GST the Consultant must pay for any supply by the Consultant under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set-off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that the Consultant (or the Consultant’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.2 At the Consultant’s sole discretion, the cost of Delivery is either included or is in addition to the Price.
7.3 The Consultant may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.4 The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.
7.5 The Client shall ensure that the Consultant has clear and free access to the site at all times to deliver the Goods.
7.6 The Client acknowledges and accepts that:
(a) the Consultant’s driver may assist with unloading only; and
(b) where access and labour are not available then the Consultant at their discretion may charge a handling fee which be shown as a variation on the invoice.
7.7 Any time specified by the Consultant for Delivery of the Goods is an estimate only and the Consultant will not be liable for any loss or damage incurred by the Client because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If the Consultant is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then the Consultant shall be entitled to charge a reasonable fee for redelivery and/or storage.
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, the Consultant is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Consultant is sufficient evidence of the Consultant’s rights to receive the insurance proceeds without the need for any person dealing with the Consultant to make further enquiries.
8.3 If the Client requests the Consultant to leave Goods outside the Consultant’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
8.4 The Client acknowledges and accepts that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in the Consultant’s or 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 the Consultant;
(b) the Consultant is only responsible for the Goods that are replaced/supplied by the Consultant, and in the event that other parts/goods, subsequently fail, the Client agrees to indemnify the Consultant against any loss or damage to the Services, or caused by the Goods, or any part thereof howsoever arising;
(c) all electronic security systems and any similar devices installed at or attached to the address are:
(i) for monitoring and detection purposes only and should not be regarded as life saving devices;
(ii) do not guarantee that the address will be free from malicious damage or loss caused by attack and/or breaking or entering.
(d) it shall be the Client’s responsibility:
(i) to ensure the security system equipment is tested and maintained to full operational condition;
(ii) for all phone calls emanating from the security system panel; and
(iii) to ensure all electronically protected areas are free from obstacles which may impair the operation of the system.
8.5 The Client acknowledges and agrees that the Consultant shall not be held responsible or liable for any loss:
(a) corruption, or deletion of files or data (including, but not limited to, software programmes) resulting from illegal hacking of Services provided by the Consultant. The Consultant will endeavour to restore the files or data (at the Client’s cost), and it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to the Consultant providing the Services. The Client accepts full responsibility for the Client’s software and data, and the Consultant is not required to advise or remind the Client of appropriate backup procedures (unless included as part of the Services);
(b) or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.
8.6 The Consultant, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by the Consultant to the Client.
8.7 The Services (and any associated software) are provided on an “as is, as available” basis. The Consultant specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
8.8 In the event that the Goods are to be installed by the Consultant the Client agrees to make the premises, and access thereto, available immediately upon request by the Consultant. It is the Client’s responsibility to provide electricity and have a clear and safe area for the purposes of installation. The Consultant shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Consultant.
9. Support Services
9.1 Support Services shall only be used by the Client for lawful purposes. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability).
9.2 Unless otherwise agreed the Support Services exclude domain registrations and SSL Certificates.
9.3 The Consultant will make best efforts to ensure that the Client receives continual and uninterrupted Services (including network servers) during the term of this Contract, however the Consultant does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to regularly scheduled maintenance cycles, and many events/circumstances beyond the control of the Consultant. In no event though, shall the Consultant be liable to the Client for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, lack of connection or slow connection) of the Consultant to provide Services under this Contract, or any loss of data, if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this Contract.
9.4 The Consultant may, at their sole discretion, limit or deny access to the Services if, in the judgement of the Consultant, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.
9.5 If the Client requires Support, then the Client must request such Support from the Consultant provided that for:
(a) non-urgent Support the Client must contact the Consultant by email provide detailed information outlining the issue in respect of which they require Support and the name and contact details of the person to whom the Consultant should respond or contact for further clarification of the Support request; and
(b) urgent Support the Client must contact the Consultant and leave a detailed message outlining the issue in respect of which they require Support and the name and contact details of the person to whom the Consultant should respond or contact for further clarification of the Support request.
9.6 The Consultant will make efforts to respond to a Support request received during the support hours of 0830-1700 Monday to Friday (“Support Hours”) within two (2) hours unless the Client is notified otherwise at the time of lodging the Support request. The Consultant will then make efforts to provide a resolution to the issue in question within a timeframe reflective of the severity of the issue. Any day that is a Saturday, Sunday or public holiday in New South Wales is regarded as being outside of Support Hours, unless otherwise stated.
After Hours Support
9.7 Subject to any confirmed After Hours Support in accordance with the Consultant’s Service Agreement, the Consultant will provide the Client with after-hours support for any incident classified as urgent under the Support requirements. Clients that do not have a SLA in place the Consultant will ensure to supply appropriate support when necessary i.e datacentre wide failure.
9.8 The provision of Support outside of Support Hours in response to a Support request will be entirely at the Consultant’s discretion, acting reasonably, on the basis of:
(a) the information provided to the Consultant as part of the Support request;
(b) the Consultant’s current available resources which would enable it to provide the Support as requested and;
(c) whether the Consultant believes such requested Support could be supplied during the next period of Support hours with a minimum of disruption and inconvenience to the Client.
9.9 The hours worked after hours will be charged at the Consultant’s standard after hours rate specified on the Service Agreement.
10. Client’s Obligations:
10.1 The Client will, at it’s sole cost and expense:
(a) maintain adequate security precautions in connection with the Client’s use of the Services (including but not limited to failure to use/maintain anti-virus software, accessibility to the data via insecure internet connections, insecure passwords or unsecure access to passwords, leaving active connection unattended or any other event which on the basis of a reasonable test would in the opinion of the Consultant be inadequate etc);
(b) ensure that the Consultant is at all times is granted all necessary licences, permissions and access reasonably required by the Consultant to perform the Support and additional Support including without limitation:
(i) physical access to any relevant premises and hardware;
(ii) logon and password access to any relevant computer systems; and
(iii) remote online access to any relevant computer systems where available.
(c) failure by the Client to comply with clause 10.1 will entitle the Consultant, at its option, to suspend the Support and Additional Support without liability until such time as clause 10.1 is complied with.
(d) the Client will not:
(i) logon to an account that the Client is not authorised to access;
(ii) access data or take any action to obtain services not intended for the Client;
(iii) attempt to probe, scan or test the vulnerability of any system, subsystem or network;
(iv) tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation;
(v) send spam or other duplicative or unsolicited messages in violation of applicable laws including without limitation the Spam Act 2003; and
(vi) do anything that prevents or hinders the Consultant from providing the Support Services to any other person.
(e) the Client acknowledges and agrees that spamming (i.e. the sending of unsolicited email), email address cultivation, or any unauthorised collecting of email addresses without prior notification of the email address owner is strictly prohibited.
(f) the Consultant at its sole discretion acting reasonably shall be entitled to determine when there has been a breach of clause 10.1(d) and without limiting any other provision of these terms and conditions, the Consultant shall be entitled without liability to take such actions as it deems appropriate in the circumstances.
10.2 Limitation of Liability Support Services:
(a) in consideration of clause 25.4 in the event the Support Services provided to the Client are disrupted or malfunction for any reason, the Consultant’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Client to the Consultant for the Support Services during the period of disruption or malfunction.
(b) the Client acknowledges and accepts that for the Consultant to carry out maintenance Services that the Services will not be available during this time. To the best of its ability the Consultant will endeavour to:
(i) keep any such down time to the absolute minimum necessary to carry out such maintenance;
(ii) wherever reasonably possible to do so, schedule such down time for weekends; and
(iii) wherever reasonably possible to do so, provide the Client with at least three (3) days prior written notice of any such down time.
(c) without in any way limiting the effect of any other provision of these terms and conditions, the Consultant will make reasonable efforts to ensure that as part of the Support Services nightly backups (“Backups”) occur which are stored for sixty (60) days and the Consultant, however where the Client chooses not to accept the option of Backups executed by the Consultant then it shall be the Client’s responsibility to activate regular Backups themselves. The Consultant will not be liable for any loss or damages where the Client fails to execute the said Backups.
(d) work required by the Consultant to recover information from any Backup will incur the Consultant’s then standard service fee for such work provided that no charge will be made where such recovery is required solely due to the direct fault of the Consultant.
(a) subject to sub-clause 10.3(b), the Consultant will provide the maintenance Services in accordance with the maintenance terms set out in the Consultant’s maintenance schedule.
(b) the Client will procure all necessary authorisations, licences and consents to enable the Consultant to have access to the hosted servers in order to provide the maintenance Services.
11. Compliance with Laws
11.1 The Client and the Consultant shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services.
11.2 Both parties acknowledge and agree:
(a) to comply with the National Construction Code of Australia (NCC) and the Building Products (Safety) Act 2017, in respect of all workmanship and products to be supplied during the course of the Services; and
(b) that Services will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
11.3 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with all relevant Australian and New Zealand Wiring standards.
11.4 For the purposes of clauses 11.4 to 11.9:
(a) “Act” means the Modern Slavery Act 2018 (cth)
(b) “Modern Slavery”, “Modern Slavery Statement” and “Reporting Entity” have the meanings given by the Act.
11.5 If the Client is a Reporting Entity, it shall comply with all of its obligations under the Act.
11.6 Whether the Client is a Reporting Entity or not, the Client shall:
(a) use reasonable endeavours to identify, assess and address risks of Modern Slavery practices in its operations and supply chains;
(b) use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes of the Contract have undertaken suitable training to identify and report Modern Slavery;
(c) use its reasonable endeavours to ensure that if at any time the Client becomes aware of Modern Slavery practices in its operations and supply chains, the Client must as soon as reasonably practicable take all reasonable steps to address or remove these practices;
(d) provide to the Consultant a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and
(e) within seven (7) days of the Consultant’s request (or such longer period as the Consultant agrees), provide to the Consultant any information or assistance reasonable requested by the Consultant;
(i) concerning the Client’s compliance with the Act;
(ii) concerning the Client’s operations and supply chains;
(iii) to enable the Consultant to prepare a Modern Slavery Statement or otherwise comply with the Act; or
(iv) to enable the Consultant to assess and address risks of Modern Slavery practices in its operations and supply chains.
11.7 The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach by way of remediation and the Consultant will be able to terminate the Contract for any breach by the Client.
11.8 The Client warrants that any information supplied to the Consultant is true and accurate and may be relied upon for the purposes of the Act.
11.9 The Client shall indemnify the Consultant against any loss or liability suffered by the Consultant as a result of the Client’s breach of this clause 11.
12.1 The Consultant and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Consultant all amounts owing to the Consultant; and
(b) the Client has met all of its other obligations to the Consultant.
12.2 Receipt by the Consultant 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 Goods passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Goods and must return the Goods to the Consultant on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Consultant and must pay to the Consultant the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Consultant and must pay or deliver the proceeds to the Consultant on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Consultant and must sell, dispose of or return the resulting product to the Consultant as it so directs;
(e) the Client irrevocably authorises the Consultant to enter any premises where the Consultant believes the Goods are kept and recover possession of the Goods;
(f) the Consultant may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Consultant;
(h) the Consultant may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 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 Goods that have previously been supplied and that will be supplied in the future by the Consultant to the Client, and the proceeds from such Goods.
13.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Consultant may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Consultant for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Consultant;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of the Consultant;
(e) immediately advise the Consultant of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
13.4 The Consultant and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by the Consultant, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Client must unconditionally ratify any actions taken by the Consultant 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 the Consultant agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering the Consultant’s security interest over the Client on the PPSA, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Client indemnifies the Consultant from and against all the Consultant’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Consultant’s rights under this clause.
14.3 The Client irrevocably appoints the Consultant and each director of the Consultant as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Client must inspect the Goods on Delivery and must within seven (7) days of Delivery notify the Consultant in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Consultant to inspect the Goods.
15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees andwarranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non- Excluded Guarantees).
15.3 The Consultant 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, the Consultant makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Consultant’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Client is a consumer within the meaning of the CCA, the Consultant’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If the Consultant is required to replace the Goods under this clause or the CCA, but is unable to do so, the Consultant may refund any money the Client has paid for the Goods.
15.7 If the Client is not a consumer within the meaning of the CCA, the Consultant’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Consultant at the Consultant’s sole discretion;
(b) limited to any warranty to which the Consultant is entitled, if the Consultant did not manufacture the Goods;
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(b) the Consultant has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, the Consultant shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by the Consultant;
(e) fair wear and tear, any accident, or act of God.
15.10 The Consultant may in its absolute discretion accept non-defective Goods for return in which case the Consultant may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
15.11 Notwithstanding anything contained in this clause if the Consultant is required by a law to accept a return, then the Consultant will only accept a return on the conditions imposed by that law.
15.12 Subject to clause 15.1, customised, or non-stocklist items or Goods made or ordered to the Client’s specifications are not acceptable for credit or return.
16. Intellectual Property
16.1 Where the Consultant has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Consultant. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Consultant.
16.2 The Client warrants that all designs, specifications, or instructions given to the Consultant will not cause the Consultant to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Consultant against any action taken by a third party against the Consultant in respect of any such infringement.
16.3 The Client agrees that the Consultant may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Consultant has created for the Client.
17.1 Subject to clause 17.2, each party agrees to treat as confidential the other party’s Confidential Information, and agree not to divulge it to any third party, without the other party's written consent.
17.2 Both parties agree to:
(a) use the Confidential Information of the other party only to the extent required for the purpose it was provided;
(b) not copy or reproduce any of the Confidential Information of the other party in any way;
(c) only disclose the other party’s Confidential Information to:
(i) employees and third-party providers who need access to the information and who have agreed to keep it confidential;
(ii) its legal advisers and insurance providers if those persons undertake to keep such information confidential; and
(iii) not disclose the other party’s Confidential Information to any person not referred to in this clause except with the other party’s prior
written consent or if required by law, any stock exchange or any regulatory body.
17.3 Either party must promptly return or destroy all Confidential Information of the other party in its possession or control at the other party’s request unless required by law to retain it.
17.4 Confidential Information excludes information:
(a) generally available in the public domain (without unauthorised disclosure under this Contract);
(b) received from a third party entitled to disclose it;
(c) that is independently developed.
17.5 The obligations of this clause 17 shall survive termination or cancellation of this Contract.
18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Consultant’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes the Consultant any money, the Client shall indemnify the Consultant from and against all costs and disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Client would be liable;
in regard to legal costs on a solicitor and own client basis, internal administration fees, the Consultant’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
18.3 Further to any other rights or remedies the Consultant may have under this Contract, if a Client has made payment to the Consultant, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Consultant under this clause 18 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.
18.4 Without prejudice to the Consultant’s other remedies at law the Consultant shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Consultant shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Consultant becomes overdue, or in the Consultant’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Consultant;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
19.1 Without prejudice to any other remedies the Consultant may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Consultant may suspend or terminate the supply of Goods to the Client. The Consultant will not be liable to the Client for any loss or damage the Client suffers because the Consultant has exercised its rights under this clause.
19.2 Either party may, without liability, cancel these terms and conditions or cancel provision of the Services:
(a) if there is no contract term specified, at any time by giving thirty (30) days’ notice to the other party;
(b) if a contract term is specified, at any time after the end of the Contract term by giving thirty (30) days’ notice to the other party;
19.3 The Consultant may, in addition to their right to cancel under clause19.2 do so at any time:
(a) prior to the commencement of the Services, by giving notice to the Client, in the event the Consultant determines it is not technically, commercially or operationally feasible to provide the Services to the Client; or
(b) in the event the Client materially breaches these terms and conditions, and such breach is not capable of remedy.
19.4 In the event that the Client cancels the:
(a) provision of Services prior to the expiry of any specified Contract term, then the Client shall be liable to pay for the provision of the Services until the expiration of the Contact term; or
(b) delivery of Goods without giving the Consultant the prescribed notice period in accordance with clause 19.2 then the Client shall be liable for all losses incurred (whether direct or indirect) by the Consultant as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.5 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.
20.1 All emails, documents, images, or other recorded information held or used by the Consultant is Personal Information, as defined and referred to in clause 20.3, and therefore considered Confidential Information. The Consultant 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”). The Consultant acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Consultant that may result in serious harm to the Client, the Consultant 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.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to the Consultant in respect of Cookies where the Client utilises the Consultant’s website to make enquiries. The Consultant 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 the Consultant when the Consultant sends an email to the Client, so the Consultant may collect and review that information (“collectively Personal Information”)
20.3 The Client agrees that the Consultant 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.
20.4 The Client consents to the Consultant being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
20.5 The Client agrees that personal credit information provided may be used and retained by the Consultant for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
20.6 The Consultant 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.
20.7 The information given to the CRB may include:
(a) Personal Information as outlined in 20.3 above;
(b) name of the credit provider and that the Consultant 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 (provided the Consultant is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Consultant has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Consultant, 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).
20.8 The Client shall have the right to request (by e-mail) from the Consultant:
(a) a copy of the Personal Information about the Client retained by the Consultant and the right to request that the Consultant correct any incorrect Personal Information; and
(b) that the Consultant does not disclose any Personal Information about the Client for the purpose of direct marketing.
20.9 The Consultant will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
20.10 The Client can make a privacy complaint by contacting the Consultant via e-mail. The Consultant will respond to that complaint within seven
(7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
21. Unpaid Seller’s Rights
21.1 Where the Client has left any item with the Consultant for repair, modification, exchange or for the Consultant to perform any other service in relation to the item and the Consultant has not received or been tendered the whole of any monies owing to it by the Client, the Consultant shall have, until all monies owing to the Consultant 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.
21.2 The lien of the Consultant shall continue despite the commencement of proceedings, or judgment for any monies owing to the Consultant
having been obtained against the Client.
22. Building and Construction Industry Security of Payments Act 1999
22.1 At the Consultant’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
22.2 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.
23. Service of Notices
23.1 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.
23.2 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.
24.1 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 the Consultant may have notice of the Trust, the Client covenants with the Consultant 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 the Consultant (the Consultant 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.
25.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
25.2 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.
25.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the Coffs Harbour Courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
25.4 Subject to clause 15, the Consultant shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Consultant of these terms and conditions (alternatively the Consultant’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
25.5 The Consultant may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
25.6 The Client cannot licence or assign without the written approval of the Consultant.
25.7 The Consultant may elect to subcontract out any part of the Services 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 the Consultant’s sub-contractors without the authority of the Consultant.
25.8 The Client agrees that the Consultant 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 the Consultant to provide Goods to the Client.
25.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party.
25.10 Both parties warrant that they have the power to enter 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.
25.11 This Contract and any subsequent hire agreement between the Consultant and the Client, shall constitute as the entire agreement between the Consultant and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by the Consultant that is not embodied in this Contract.
25.12 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
#41188 © Copyright – EC Credit Control 1999 - 2023