“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.
“Seller” means Artilux (Australia) Pty Limited T/A Artilux, its successors and assigns or any person acting on behalf of and with the authority of Artilux (Australia) Pty Limited T/A Artilux.
“Buyer” means the person/s, entities or any person acting on behalf of and with the authority of the Buyer requesting the Seller to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Buyer, is a reference to each Buyer jointly and severally; and
if the Buyer is a partnership, it shall bind each partner jointly and severally; and
if the Buyer is a part of a trust, shall be bound in their capacity as a trustee; and
includes the Buyer’s executors, administrators, successors and permitted assigns.
“Works” means all Works performed and/or Materials provided by the Seller to the Buyer at the Buyer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
“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.
“Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Seller and the Buyer in accordance with clause 2 below.
“GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. Price and Payment
The Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of the Works provided.
Time for payment for the Works shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated, then payment will be due seven (7) days following the date of the invoice.
The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Buyer must pay to the Seller an amount equal to any GST the Seller must pay for any provision of Works by the Seller under this or any other contract. The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the Price. In addition, the Buyer 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.
If the Seller retains ownership of the Materials under clause 4 then:
where the Seller is supplying Materials only, all risk for the Materials shall immediately pass to the Buyer on delivery and the Buyer must insure the Materials on or before delivery;
where the Seller is to both supply and install Materials then the Seller 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 Buyer.
Notwithstanding the provisions of clause 3.1, if the Buyer specifically requests the Seller to leave Materials outside the Seller’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Buyer and it shall be the Buyer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Buyer’s expense.
The Seller and the Buyer agree that ownership of the Materials shall not pass until:
the Buyer has paid the Seller all amounts owing to the Seller; and
the Buyer has met all of its other obligations to the Seller.
Receipt by the Seller 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 Seller’s right and ownership in relation to the Materials, and this Contract, shall continue.
It is further agreed that, until ownership of the Materials passes to the Buyer in accordance with clause 4.1:
the Buyer is only a bailee of the Materials and must return the Materials to the Seller on request;
the Buyer holds the benefit of the Buyer’s insurance of the Materials on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
the Buyer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Buyer sells, disposes or parts with possession of the Materials then the Buyer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand;
the Buyer should not convert or process the Materials or intermix them with other Materials but if the Buyer does so then the Buyer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs;
the Buyer irrevocably authorises the Seller to enter any premises where the Seller believes the Materials are kept and recover possession of the Materials;
the Seller may recover possession of any Materials in transit whether or not delivery has occurred;
the Buyer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Seller; and
the Seller may commence proceedings to recover the Price notwithstanding that ownership of the Materials has not passed to the Buyer.
5. Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
Upon assenting to these terms and conditions in writing the Buyer 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 Buyer to the Seller for Works – that have previously been supplied and that will be supplied in the future by the Seller to the Buyer.
The Buyer undertakes to:
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 Seller may reasonably require to:
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 5.3(a)(i) or 5.3(a)(ii).
indemnify, and upon demand reimburse, the Seller 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;
not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
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 the Seller;
immediately advise the Seller 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.
The Seller and the Buyer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
The Buyer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Buyer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
The Buyer shall unconditionally ratify any actions taken by the Seller under clauses 5.3 to 5.5.
Subject to any express provisions to the contrary (including those contained in this clause 5), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
6. Security and Charge
In consideration of the Seller agreeing to provide the Works, the Buyer 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 Buyer either now or in the future, to secure the performance by the Buyer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Buyer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
The Buyer irrevocably appoints the Seller and each director of the Seller as the Buyer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 6 including, but not limited to, signing any document on the Buyer’s behalf.
7. Default and Consequences of Default
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 Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Buyer owes the Seller any money the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).
Further to any other rights or remedies the Seller may have under this Contract, if a Buyer has made payment to the Seller, and the transaction is subsequently reversed, the Buyer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 7 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Buyer’s obligations under this Contract.
All emails, documents, images or other recorded information held or used by the Seller is Personal Information, as defined and referred to in clause 8.3, and therefore considered Confidential Information. The Seller 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 Seller acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Buyer’s Personal Information, held by the Seller that may result in serious harm to the Buyer, the Seller will notify the Buyer 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 Buyer by written consent, unless subject to an operation of law.
Notwithstanding clause 8.1, privacy limitations will extend to the Seller in respect of cookies where the Buyer utilises the Seller’s website to make enquiries. The Seller 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 Buyer’s:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to the Seller when the Seller sends an email to the Buyer, so the Seller may collect and review that information (“collectively Personal Information”)
The Buyer agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Buyer in relation to credit provided by the Seller.
The Buyer agrees that the Seller may exchange information about the Buyer with those credit providers and with related body corporates for the following purposes:
to assess an application by the Buyer; and/or
to notify other credit providers of a default by the Buyer; and/or
to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and/or
to assess the creditworthiness of the Buyer including the Buyer’s repayment history in the preceding two years.
The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
The Buyer agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):
the provision of Works; and/or
analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to the provision of Works; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Buyer; and/or
enabling the collection of amounts outstanding in relation to the Works.
The Seller may give information about the Buyer to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about the Buyer including credit history.
The information given to the CRB may include:
Personal Information as outlined in 8.3 above;
name of the credit provider and that the Seller is a current credit provider to the Buyer;
whether the credit provider is a licensee;
type of consumer credit;
details concerning the Buyer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults (provided the Seller is a member of an approved QAIC 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 Buyer no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
information that, in the opinion of the Seller, the Buyer has committed a serious credit infringement;
advice that the amount of the Buyer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Buyer shall have the right to request (by e-mail) from the Seller:
a copy of the Personal Information about the Buyer retained by the Seller and the right to request that the Seller correct any incorrect Personal Information; and
that the Seller does not disclose any Personal Information about the Buyer for the purpose of direct marketing.
The Seller will destroy Personal Information upon the Buyer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
The Buyer can make a privacy complaint by contacting the Seller via e-mail. The Seller 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 Buyer is not satisfied with the resolution provided, the Buyer can make a complaint to the Information Commissioner at www.oaic.gov.au.
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.
These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts of that state.
Where applicable nothing in this Contract is intended to have the effect of contracting out of the Competition and Consumer Act 2010 (CCA). The Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
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.
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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