G & B AIR CONDITIONING & ELECTTICAL MIDCOAST AIR CONDITIONING AND COMMERCIAL TRADING AS MIDCOAST ENTERPRISES
TERMS AND CONDITIONS OF TRADE
1.1 “Midcoast Enterprises” means G&B Air Conditioning & Electrical Midcoast Air Conditioning and Commercial Trading As Midcoast Enterprises Pty Ltd, it’s successor and assign or any person acting on behalf of and with the authority of G&B Air Conditioning & Electrical Midcoast Air Conditioning and Commercial Trading As Midcoast Enterprises Pty Ltd.
1.2“Client” means the person/s buying the Goods (and/or hiring Equipment)as specified in any invoice, document or order and if there is more than one Client is a reference to each Client jointly and severally.
1.3“Goods” means all Goods or Services supplied by Midcoast Enterprises to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ and ‘Services’ shall be interchangeable for the other).
1.4“Equipment” means all Equipment including any accessories supplied on hire by Midcoast Enterprises to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Midcoast Enterprises to the Client.
1.5“Price” means the Price payable for the Goods and/or Equipment hire as agreed between Midcoast Enterprises and the Client in accordance with clause 5 below.
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/Equipment.
2.2 These terms and conditions may only be amended with Midcoast Enterprises’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Midcoast Enterprises.
2.3 Unless otherwise stipulated within any document provided by Midcoast Enterprises to the Client, the Price has been calculated on the Services being completed during normal working hours, with suitable and safe access to all equipment covered under the agreement. Where Midcoast Enterprises provides work outside of these hours, penal rates and other associated charges may be passed onto the Client and shown as a variation as per clause 5.2.
3. Change in Control
3.1 The Client shall give Midcoast Enterprises 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 Midcoast Enterprises as a result of the Client’s failure to comply with this clause.
4. Electronic Transactions Act 2001
4.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.
5. Price and Payment
5.1 At Midcoast Enterprises sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Midcoast Enterprises to the Client; or
(b) the Price as at the date of delivery of the Goods/Equipment according to Midcoast Enterprises’ current price list; or
(c) Midcoast Enterprises’ 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 Midcoast Enterprises reserves the right to change the Price:
(a) if a variation to the Goods which are to supplied requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety wiring in walls, etc) which are only discovered on commencement of the Services; or
(d) in the event of increases to Midcoast Enterprises in the cost of labour or materials which are beyond Midcoast Enterprises’ Control.
5.3 The Price of the variations as per clause 5.2 shall be agreed between the parties, and in the event of any discrepancy, the higher of two shall take precedence, unless expressly recanted in writing.
5.4 At Midcoast Enterprises’ sole discretion a non – refundable deposit may be required.
5.5 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by Midcoast Enterprises, which may be:
(a) on delivery of the Goods/Equipme;
(b) before delivery of the Goods/Equipment;
© by way of instalments/ progress payments in accordance with Midcoast Enterprises’ payment schedule;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Midcoast Enterprises.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/ on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Client and Midcoast Enterprises.
5.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Midcoast Enterprises an amount equal to any GST Midcoast Enterprises must pay for any supply by Midcoast Enterprises under this or any other agreement for the sale of the Goods/ hire of the Equipment. The Client must pay GST, without deduction or set off 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 Goods/ Equipment and Services
6.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at Midcoast Enterprises’ address; or
(b) Midcoast Enterprises (or Midcoast Enterprises nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
6.2 At Midcoast Enterprises’ sole discretion the cost of delivery is in addition to the Price.
6.3 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
6.4 Subject to clause 6.5 it is Midcoast Enterprises’ responsibility to ensure that the Services start as it is reasonably possible.
6.5 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the even that Midcoast Enterprises claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Midcoast Enterprises’ control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
© notify Midcoast Enterprises that the site is ready.
6.6 The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the even that the Client is unable to take delivery of the Goods/Equipment as arranged then Midcoast Enterprises shall be entitled to charge a reasonable fee for redelivery of the Goods/Equipment and/or storage of the Goods.
6.7 The failure of Midcoast Enterprises to deliver shall not entitle either party to treat this contract as repudiated.
6.8 Midcoast Enterprises may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.9 Any time or date given by Midcoast Enterprises to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and Midcoast Enterprises will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7.1 Risk of damage to or loss of the Goodes passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Midcoast Enterprises is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Midcoast Enterprises is sufficient evidence of Midcoast Enterprises’ rights to receive the insurance proceeds without the need for any person dealing with Midcoast Enterprises to make further enquiries.
7.3 If the Client requests Midcoast Enterprises to leave Goods outside Midcoast Enterprises’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
7.4 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 SafetyRegulations 2002. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
7.5 The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roofing), Midcoast Enterprises reasonably forms the opinion that the Client’s premises is not safe for the installation of Goods to proceed then Midcoast Enterprises shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 6.5 above) UntilMidcoast Enterprises is satisfied that it is safe for the installation to proceed.
7.6 Should Midcoast Enterprises find any pre – existing default that requires remedial repairs or replacement of parts to enable installation of the Goods to occur, Midcoast Enterprises shall notify the Client and submit a Price for such additional work as per clause 5.2. Should the Client fail to sign any authority for this additional work to be completed then the contract shall be deemed to be at an end and the Client shall pay Midcoast Enterprises for all Goods and Services supplied to date.
7.7 Where the Client has supplied materials for Midcoast Enterprises to complete the Services, the Client acknowledges that he/she accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Midcoast Enterprises shall not be responsible for any defects in the materials, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Client.
7.8 The Client acknowledges that Midcoast Enterprises is only responsible for parts that are replace by Midcoast Enterprises, and in the even that other parts/Goods, subsequently fail, the Client agrees to indemnify Midcoast Enterprises against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
7.9 Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 5.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.
7.10 The final location of the wall, window or floor unit must be determined on site by the Client.
7.11 Midcoast Enterprises shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however Midcoast Enterprises cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as weather, lack of maintenance, tampering etc.
7.12 In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved.
7.13 The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
7.14 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client, then the Client agrees to notify Midcoast Enterprises immediately upon any proposed changes. The Client agrees to indemnify Midcoast Enterprises against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 5.2.
8.1 The Client shall ensure that Midcoast Enterprises has clear and free access to the work site at all times to enable them to undertake the works or deliver Equipment. Midcoast Enterprises 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 negligence of Midcoast Enterprises.
9. Underground Locations
9.1 Prior to Midcoast Enterprises commencing any work the Client must advise Midcoast Enterprises of the precise location of all underground services on the site and clearly make the same. The underground mains and services the Client must identify include but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
9.2 Whilst Midcoast Enterprises will take all care to avoid damage to any underground services the Client agrees to indemnify Midcoast Enterprises in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.
10. Title to Goods
10.1 Midcoast Enterprises and the Client agree that the ownership of the Goods shall not pass until:
(a) the Client has paid Midcoast Enterprises all amounts owing to Midcoast Enterprises; and
(b) the Client has met all of its other obligations to Midcoast Enterprises.
10.2 Receipt by Midcoast Enterprises of any form of payment other than cash shall not be deemed payment until that form of payment has been honoured, cleared or recognised.
10.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to Midcoast Enterprises on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Midcoast Enterprises and must pay Midcoast Enterprises 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 an act on trust for Midcoast Enterprises and must pay or deliver the proceeds to Midcoast Enterprises on demand.
(d) the Client should not covert or process the Goods or intermix them with other Goods but if the Client does so then the Client hold the resulting product on trust for the benefit of Midcoast Enterprises and must sell, dispose of or return the resulting product to Midcoast Enterprises as it so directs.
(e) the Client irrevocably authorises Midcoast Enterprises to enter any premises where Midcoast believes the Goods are kept and recover possession of the Goods.
(f) Midcoast Enterprises 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 Midcoast Enterprises.
(h) Midcoast Enterprises may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
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 all Goods/ Equipment that has previously been supplied and that will be supplied in the future by Midcoast Enterprises 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 Midcoast Enterprises 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)(i);
(b) indemnify, and upon demand reimburse, Midcoast Enterprises 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/Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Midcoast Enterprises;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment in favour of a third party without the prior written consent of Midcoast Enterprises.
(e) Immediately advise Midcoast Enterprises of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
11.4 Midcoast Enterprises 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 the grantor and/ or debtor under sections 142 and 143 of PPSA.
11.7 Unless otherwise agreed to in writing by Midcoast Enterprises, 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 and actions taken by Midcoast Enterprises 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 any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of Midcoast Enterprises agreeing to supply the Goods/Equipment, 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 Midcoast Enterprises from and against Midcoast Enterprises’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Midcoast Enterprises’ rights under this clause.
12.3 The Client irrevocable appoints Midcoast Enterprises and each director of Midcoast Enterprises 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 Returns, Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify Midcoast Enterprises 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/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Midcoast Enterprises to inspect the Goods/Equipment.
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 Midcoast Enterprises 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, Midcoast Enterprises makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. Midcoast Enterprises’ 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, Midcoast Enterprises’ liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If Midcoast Enterprises is required to replace the Goods under this clause of the CCA, but is unable to do so, Midcoast Enterprises my refund any money the Client has paid for the Goods.
13.7 If the Client is not a consumer within the meaning of the CCA, Midcoast Enterprises’ 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 Midcoast Enterprises at Midcoast Enterprises’ sole discretion;
(b) limited to any warranty to which Midcoast Enterprises is entitled, if Midcoast Enterprises did not manufacture the Goods;
(c) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 13.1; and
(b) Midcoast Enterprises 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; and
(e) the Goods have not already been installed.
13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, Midcoast Enterprises shall not be liable for any defect or damage which may be caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods/Equipment;
(b) the Client using the Goods/Equipment for any purpose other than what for which they were designed;
(c) the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonable prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Midcoast Enterprises;
(e) fair wear and tear, any accident, or act of God.
13.10 Midcoast Enterprises may in its absolute discretion accept non-defective Goods for return in which case Midcoast Enterprises may require the Client to pay handling fees of up to twenty-five percent (25%) of the value of the returned Goods plus any freight costs.
13.11 Notwithstanding anything contained in this clause if Midcoast Enterprises is required by a law to accept a return then Midcoast Enterprises will only accept a return on the conditions imposed by that law.
14. Intellectual Property
14.1 Where Midcoast Enterprises has designed, drawn or developed Goods/ Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of Midcoast Enterprises.
14.2 The Client warrants that all designs, specifications or instructions given to Midcoast Enterprise will not cause Midcoast Enterprises to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Midcoast Enterprises against any action taken by a third party against Midcoast Enterprises in respect of any such infringement.
14.3 The Client agrees that Midcoast Enterprises may (at no cost) use for the purpose of marketing or entry into any competition, any digital or photographic images, documents, designs, drawings or Goods which Midcoast Enterprises 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 Midcoast Enterprises’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes Midcoast Enterprises any money the Client shall indemnify Midcoast Enterprises form and against all costs and reimbursements incurred by Midcoast Enterprises in recovering the debt (including, but not limited to internal administration fees, legal costs on a solicitor and own client basis, Midcoast Enterprises’ contract default fees and back dishonour fees).
15.3 Without prejudice to any other remedies Midcoast Enterprises may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Midcoast Enterprises may suspend or terminate the supply of Goods/Equipment to the Client. Midcoast Enterprises will not be liable to the Client for any loss or damage the Client suffers because Midcoast Enterprises has exercised its rights under this clause.
15.4 Without prejudice to Midcoast Enterprises’ other remedies at Law Midcoast Enterprises shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Midcoast Enterprises shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Midcoast Enterprises becomes overdue, or in Midcoast Enterprises’ 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) or receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any assets of the Client.
16.1 Midcoast Enterprises may cancel any contract to which theses terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice Midcoast Enterprises shall repay to the Client any money paid by the Client for the Goods/Equipment. Midcoast Enterprises 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 Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by Midcoast Enterprises as a direct result of the cancellation (including, but not limited to, amy loss of profits). Any such cancellation must be in writing and seven (7) days prior to any quoted delivery or consignment date and must be agreed to by Midcoast Enterprises.
16.3 Cancellation of orders for Goods/Equipment made to the Client’s specifications, or for non-stock list items, will definitely not be accepted once production has commenced, or an order has been placed.
17. Privacy Act 1988
17.1 The Client agrees for Midcoast Enterprises to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Midcoast Enterprises.
17.2 The Client agrees that Midcoast Enterprises may exchange information about the Client with those credit providers either names as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.3 The Client consents to Midcoast Enterprises being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1) (h) Privacy Act 1988).
17.4 The Client agrees that the personal credit information provided may be used and retained by Midcoast Enterprises for the following purposes (and for other purposes as shall be agreed between the Client and Midcoast Enterprises or required by law from time to time):
(a) the provision of Goods/ Equipment; and/or
(b) the marketing of Goods/Equipment by Midcoast Enterprises, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods/Equipment.
17.5 Midcoast Enterprises may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file contacting information about the Client.
17.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Midcoast Enterprises is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Midcoast Enterprises, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Midcoast Enterprises has been paid or otherwise discharged.
18. Equipment Hire
18.1 Equipment shall at all times remain the property of Midcoast Enterprises and is returnable or demand by Acer. In the event that Equipment is not returned to Midcoast Enterprises in the condition in which it was delivered, Midcoast Enterprises retains the right to charge the Client the full cost of repairing the Equipment. In the event that the Equipment is not returned at all, Midcoast Enterprises shall have the right to charge the Client the full cost of replacing the Equipment.
18.2 The Client shall:
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
(b) no alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
(c) keep the Equipment (complete with all the parts and accessories) clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Midcoast Enterprises to the Client.
18.3 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, Midcoast Enterprises’ interest in the Equipment and agrees to indemnify Midcoast Enterprises against physical loss or damage including, but not limited to, the perils of accident or fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
19. Dispute Resolution
19.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
20. Compliance with Laws
20.1 The Client and Midcoast Enterprises shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.
20.2 The Client shall obtain (at the expense of the Client) all licences and approvals that may be required for the Works.
20.3 The Client agrees that the site will comply with any occupational health and safety laws relating to the building/ construction sites and any other relevant safety standards or legislation.
21. Building and Construction Industry Security of Payments Act 1999 (NSW where applicable)
21.1 At Midcoast Enterprises’ sole discretion, if there are any disputes or claims for unpaid Goods, Services and/or Equipment hire then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
21.2 Nothing in this agreement is intended to have the affect 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.
22. Building and Construction Industry Payments Act 2004 (QLD where applicable)
22.1 At Midcoast Enterprises’ sole discretion, if there are any disputes or claims for unpaid Goods, Services and/or Equipment then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
22.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
23.1 The failure by Midcoast Enterprises to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Midcoast Enterprises’ 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.
23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which Midcoast Enterprises has its principal place of business, and are subject to the jurisdiction of the courts of Hervey Bay, in Queensland.
23.3 Subject to clause 13, Midcoast Enterprises shall be under no liability whatsoever to the Client for nay indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Midcoast Enterprises of these terms and conditions (alternatively Midcoast Enterprises liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/ Equipment hire).
23.4 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 Midcoast Enterprises not to withhold payment of any invoice because part of the invoice is in dispute.
23.5 Midcoast Enterprises may licence or sub-contract all or any part of its rights and obligations without the Client’s consent.
23.6 The Client agrees that Midcoast Enterprises may amend these terms and conditions at any time. If Midcoast Enterprises makes a change to these terms and conditions, then that change will take effect from the date on which Midcoast Enterprises notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Midcoast Enterprises to provide Goods/ Equipment to the Client.
23.7 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.
23.8 The Client warrants that is has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, if is not insolvent and that this agreement creates binding and valid legal obligations on it.