1. Definitions
1.1 “Agent” means A’Besco Pty Ltd T/A A’Besco Blinds and Awnings, its successors and assigns or any person acting on behalf of and with the authority of A’Besco Pty Ltd T/A A’Besco Blinds and Awnings.
1.2 “Client” means the person/s requesting the Agent to provide the Services as specified in any invoice, document or order, and if there is more than one person requesting the Services is a reference to each person jointly and severally.
1.3 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by the Agent in the course of it conducting, or supplying to the Client, any Services.
1.4 “Services” means all Services supplied by the Agent to the Client at the Client’s request from time to time.
1.5 “Price” means the price payable for the Services as agreed between the Agent and the Client in accordance with clause 5 of this contract.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by the Agent.
2.2 These terms and conditions may only be amended with the Agent’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Agent.
2.3 The Client agrees that the premises will comply with any relevant work health and safety (WHS) laws and any other relevant safety standards or legislation, and shall notify the Agent (prior to the commencement of the Services) of any potential risk in the premises which may pose a safety issue to the Agent and/or the Agent’s employees.
3. Electronic Transactions Act 2000
3.1 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.
4. Change in Control
4.1 The Client shall give the Agent not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Agent as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At the Agent’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Agent to the Client; or
(b) the Agent’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 The Agent reserves the right to change the Price if a variation to the Agent’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as limitations to accessing the site, availability of machinery, safety considerations, or as a result of any increase to the Agent in the cost of Incidental Items and labour) will be charged for on the basis of the Agent’s quotation and will be shown as variations on the invoice.
5.3 At the Agent’s sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Agent, which may be:
(a) on completion of the Services;
(b) by way of instalments/progress payments in accordance with the Agent’s payment schedule;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Agent.
5.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card, or by any other method as agreed to between the Client and the Agent.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Agent an amount equal to any GST the Agent must pay for any supply by the Agent under this or any other agreement for providing the Agent’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Services
6.1 At the Agent’s sole discretion delivery of the Services shall take place when the Services are supplied to the Client at the Client’s nominated address.
6.2 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
6.3 The Agent may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
6.4 Any time specified by the Agent for delivery of the Services is an estimate only and the Agent 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 Services to be supplied at the time and place as was arranged between both parties. In the event that the Agent is unable to supply the Services as agreed solely due to any action or inaction of the Client then the Agent shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
7. Risk
7.1 If the Agent retains ownership of the Services nonetheless, all risk for the Services passes to the Client on delivery.
7.2 The Client shall be responsible for any additional consumables supplied by the Agent after delivery of the Services unless agreed by the Client and the Agent at the time of quotation.
7.3 The Client acknowledges that in some instances pertaining to stain removal that repeated applications of treatments may be required. Although the Agent shall take all due care, some residual fading of fabrics or other porous surfaces may result from such repeated spot treatments.
8. Care of Incidental Items
8.1 The Agent may at its discretion notify the Client that it requires to store at the work site Incidental Items, equipment, products and appliances required for the Services, in which event the Client shall supply the Agent a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Client’s responsibility.
9. Access
9.1 The Client shall ensure that the Agent has clear and free access to the work site at all times to enable them to undertake the Services. The Agent 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 Agent.
10. Title
10.1 The Agent and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
(a) the Client has paid the Agent all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to the Agent in respect of all contracts between the Agent and the Client.
10.2 Receipt by the Agent 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 and until then the Agent’s ownership or rights in respect of the Incidental Items shall continue.
10.3 It is further agreed that:
(a) the Client is only a bailee of the Incidental Items and must return the Incidental Items to the Agent immediately upon request by the Agent;
(b) the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for the Agent and must pay to the Agent the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for the Agent and must pay or deliver the proceeds to the Agent on demand.
(d) the Client should not convert or process the Incidental Items 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 Agent and must dispose of or return the resulting product to the Agent as the Agent so directs.
(e) the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of the Agent;
(f) the Client irrevocably authorises the Agent to enter any premises where the Agent believes the Incidental Items are kept and recover possession of the Incidental Items.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 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:
(a) all Incidental Items previously supplied by the Agent to the Client;
(b) all Incidental Items will be supplied in the future by the Agent to the Client; and
(c) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to the Agent for Services – that have previously been provided and that will be provided in the future by the Agent to the Client.
11.3 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 Agent 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 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Agent 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 Incidental Items charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Agent;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or collateral (account) in favour of a third party without the prior written consent of the Agent.
11.4 The Agent 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.
11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by the Agent, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by the Agent under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of the Agent agreeing to supply Services, 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).
12.2 The Client indemnifies the Agent from and against all the Agent’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Agent’s rights under this clause.
12.3 The Client irrevocably appoints the Agent and each director of the Agent as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect the Agent’s Services on completion of the Services and must within twenty-four (24) hours notify the Agent in writing of any evident defect in the Services or Incidental Items provided (including the Agent’s workmanship) or of any other failure by the Agent to comply with the description of, or quote for, the Services which the Agent was to supply. The Client must notify any other alleged defect in the Agent’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Agent to review the Services or Incidental Items that were provided.
13.2 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).
13.3 The Agent acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Agent makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. The Agent’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, the Agent’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If the Agent is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then the Agent may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Client which were not defective.
13.7 If the Client is not a consumer within the meaning of the CCA, the Agent’s liability for any defective Services or Incidental Items is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Agent at the Agent’s sole discretion;
(b) otherwise negated absolutely.
13.8 Notwithstanding clauses 13.1 to 13.7 but subject to the CCA, the Agent 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 Incidental Items;
(b) the Client using the Incidental Items for any purpose other than that for which they were designed;
(c) the Client continuing to use any Incidental Items after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Services by the Client or any third party without the Agent’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by the Agent;
(f) fair wear and tear, any accident, or act of God.
14. Intellectual Property
14.1 Where the Agent has designed, drawn or developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of the Agent.
14.2 The Client warrants that all designs, specifications or instructions given to the Agent will not cause the Agent to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Agent against any action taken by a third party against the Agent in respect of any such infringement.
14.3 The Client agrees that the Agent may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which the Agent has created for the Client.
15. Default and Consequences of Default
15.1 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 Agent’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes the Agent any money the Client shall indemnify the Agent from and against all costs and disbursements incurred by the Agent in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Agent’s contract default fee, and bank dishonour fees).
15.3 Further to any other rights or remedies the Agent may have under this contract, if a Client has made payment to the Agent, 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 Agent under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
15.4 Without prejudice to any other remedies the Agent 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 Agent may suspend or terminate the supply of Services to the Client. The Agent will not be liable to the Client for any loss or damage the Client suffers because the Agent has exercised its rights under this clause.
15.5 Without prejudice to the Agent’s other remedies at law the Agent shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Agent shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Agent becomes overdue, or in the Agent’s opinion the Client will be unable to make a payment when it falls due;
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16. Cancellation
16.1 The Agent may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice the Agent shall repay to the Client any money paid by the Client for the Services. The Agent shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Agent as a direct result of the cancellation (including, but not limited to, any loss of profits).
17. Privacy Act 1988
17.1 The Client agrees for the Agent to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Agent.
17.2 The Client agrees that the Agent may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
17.3 The Client consents to the Agent being given a consumer credit report to collect overdue payment on commercial credit.
17.4 The Client agrees that personal credit information provided may be used and retained by the Agent for the following purposes (and for other agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; 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 Services.
17.5 The Agent 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.
17.6 The information given to the CRB may include:
(a) personal information as outlined in 17.1 above;
(b) name of the credit provider and that the Agent is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Agent 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 Agent, 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).
17.7 The Client shall have the right to request (by e-mail) from the Agent:
(a) a copy of the information about the Client retained by the Agent and the right to request that the Agent correct any incorrect information; and
(b) that the Agent does not disclose any personal information about the Client for the purpose of direct marketing.
17.8 The Agent 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.
17.9 The Client can make a privacy complaint by contacting the Agent via e-mail. The Agent 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.
18. Unpaid Seller’s Rights
18.1 Where the Client has left any item with the Agent for repair, modification, exchange or for the Agent to perform any other service in relation to the item and the Agent has not received or been tendered the whole of any monies owing to it by the Client, the Agent shall have, until all monies owing to the Agent 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.
18.2 The lien of the Agent shall continue despite the commencement of proceedings, or judgment for any monies owing to the Agent having been obtained against the Client.
19. General
19.1 The failure by the Agent to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Agent’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.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which the Agent has its principal place of business, and are subject to the jurisdiction of the courts of Sutherland, New South Wales.
19.3 Subject to clause 13, the Agent 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 Agent of these terms and conditions (alternatively the Agent’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
19.4 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 Agent nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 The Agent may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.6 The Client agrees that the Agent may amend these terms and conditions at any time. If the Agent makes a change to these terms and conditions, then that change will take effect from the date on which the Agent notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Agent to provide Services to the Client.
19.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
19.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.