Terms of Trade
1.1 “DFI” means Dynamick Fire Installations Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Dynamick Fire Installations Pty Ltd.
1.2 “Client” means the person/s ordering the Works/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 “Works” means all Works or Materials supplied by DFI to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4 “Equipment” means all Equipment including any accessories supplied on hire by DFI to the Client (and where the context so permits shall include any supply of Works). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by DFI to the Client.
1.5 “Price” means the Price payable (plus any GST where applicable) for the Works and/or Equipment hire as agreed between DFI and the Client in accordance with clause 5 below.
1.6 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999”.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works/Equipment.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and DFI.
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(NSW) and Section 9 of the Electronic Transactions Act 2001(ACT) 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 DFI 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 DFI as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At DFI’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by DFI to the Client in respect of Works performed or Materials/Equipment supplied; or
(b) DFI’s quoted Price (subject to clause 5.2) which shall be binding upon DFI provided that the Client shall accept DFI’s quotation in writing within thirty (30) days.
5.2 DFI reserves the right to change the Price:
(a) if a variation to the Works/Equipment which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations to site accessibility, safety considerations, prerequisite work by any third party not being completed, obscured building defects, change of design, hard rock barriers below the surface or iron reinforcing rods in concrete, hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works; or
(d) in the event of increases to DFI in the cost of labour or materials which are beyond DFI’s control.
5.3 Variations will be charged for on the basis of DFI’s quotation, and will be detailed in writing, and shown as variations on DFI’s invoice. The Client shall be required to respond to any variation submitted by DFI within ten (10) working days. Failure to do so will entitle DFI 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.
5.4 At DFI’s sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Works/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by DFI, which may be:
(a) on delivery of the Materials/Equipment; or
(b) on completion of the Works; or
(c) by way of progress payments in accordance with DFI’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or
(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 fourteen (14) days following the date of any invoice given to the Client by DFI for domestic jobs and thirty (30) days following the date of any invoice given to the Client by DFI for commercial jobs.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and DFI.
5.7 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 DFI nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to DFI an amount equal to any GST DFI must pay for any supply of Works/Equipment by DFI under this or any other agreement. 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.
6.1 Subject to clause 6.2 it is DFI’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that DFI claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond DFI’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Works; or (c) notify DFI that the site is ready.
6.3 Delivery Materials/Equipment is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Materials/Equipment at DFI’s address; or
(b) DFI (or DFI’s nominated carrier) delivers the Materials/Equipment to the Client’s nominated address even if the Client is not present at the address.
6.4 At DFI’s sole discretion, the cost of delivery is included in the Price.
6.5 Any time specified by DFI for delivery of the Works/Equipment is an estimate only and DFI will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works/Equipment to be supplied at the time and place as was arranged between both parties. In the event that DFI is unable to supply the Works/Equipment as agreed solely due to any action or inaction of the Client, then DFI shall be entitled to charge a reasonable fee for resupplying the Works/Equipment at a later time and date, and/or for storage of the Equipment/Materials.
7.1 If DFI retains ownership of the Materials under clause 13 then;
(a) where DFI is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery;
(b) where DFI is to both supply and install Materials then DFI shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
7.2 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials 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 Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that DFI, its employees or contractors reasonably form the opinion that the Client’s premises is not safe for the installation of Materials to proceed then DFI shall be entitled to delay installation of the Materials (in accordance with the provisions of clause 6.2 above) until DFI is satisfied that it is safe for the installation to proceed.
7.3 Any advice, recommendation, information, assistance or service provided by DFI in relation to Materials or Works supplied is given in good faith, is based on DFI’s own knowledge and experience and shall be accepted without liability on the part of DFI and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Materials or Works.
7.4 In the event that DFI discovers asbestos/hazardous materials whilst undertaking any Works DFI shall immediately advise the Client of the same and shall be entitled to suspend the Works pending a risk assessment in relation to those materials. The Client shall be liable for all additional costs (howsoever arising) incurred by DFI as a result of the discovery of asbestos/hazardous materials and/or any suspension of Works in relation thereto.
7.5 The Client accepts that electronic security systems, smoke, heat and like detectors installed to / at their premises:
(a) are for monitoring and detection purposes and should not be seen as a life saving device; and
(b) does not guarantee the site will be free from malicious damage or losses caused by attack, break and/or enter.
7.6 It shall be the Client’s responsibility:
(a) to ensure the security system equipment is tested and maintained to full operational condition; and
(b) for all phone calls emanating from the security system panel; and
(c) to ensure all electronically protected areas are free from obstacles which may impair the operation of the system.
8. Accuracy of Client’s Plans and Measurements
8.1 DFI shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, DFI accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.1 The Client acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in DFI 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 DFI;
(b) while DFI may have provided information or figures to the Client regarding the performance of the Materials, the Client acknowledges that DFI has given these in good faith, and are estimates based on industry prescribed estimates.
9.2 The Client shall be responsible for ensuring that the Materials ordered are suitable for their intended use.
9.3 DFI reserves the right to substitute comparable Materials (or components of the Materials), and in all such cases DFI will notify the Client in advance of any such substitution.
10.1 The Buyer shall ensure that DFI has clear and free access to the work site at all times to enable them to undertake the Works. DFI 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 DFI.
10.2 It is the responsibility of the Buyer to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by DFI.
11. Underground Locations
11.1 Prior to DFI commencing any work the Buyer must advise DFI of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Buyer 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.
11.2 Whilst DFI will take all care to avoid damage to any underground services the Buyer agrees to indemnify DFI 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 11.1.
12. Compliance with Laws
12.1 The Buyer agrees that the site will comply with any occupational health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
13. Title to Materials
13.1 DFI and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid DFI all amounts owing to DFI; and
(b) the Client has met all of its other obligations to DFI.
13.2 Receipt by DFI 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.
13.3 It is further agreed that:
(a) until ownership of the Materials passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to DFI on request.
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for DFI and must pay to DFI the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c) the production of these terms and conditions by DFI shall be sufficient evidence of DFI’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with DFI to make further enquiries.
(d) the Client 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 Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for DFI and must pay or deliver the proceeds to DFI on demand.
(e) the Client should not convert or process the Materials 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 DFI and must sell, dispose of or return the resulting product to DFI as it so directs.
(f) unless the Materials have become fixtures the Client irrevocably authorises DFI to enter any premises where DFI believes the Materials are kept and recover possession of the Materials.
(g) DFI may recover possession of any Materials in transit whether or not delivery has occurred.
(h) the Client 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 DFI.
(i) DFI may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
14. Personal Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
14.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials/Equipment and/or collateral (account) – being a monetary obligation of the Client to DFI for Services – that have previously been supplied and that will be supplied in the future by DFI to the Client.
14.3 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 DFI 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 14.3(a)(i) or 14.3(a)(ii);
(b) indemnify, and upon demand reimburse, DFI 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/Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of DFI;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials/Equipment and/or collateral (account) in favour of a third party without the prior written consent of DFI;
(e) immediately advise DFI of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
14.4 DFI 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.
14.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
14.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by DFI, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Client shall unconditionally ratify any actions taken by DFI under clauses 14.2 to 14.5.
14.9 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of DFI agreeing to supply the Works/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).
15.2 The Client indemnifies DFI from and against all DFI’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising DFI’s rights under this clause.
15.3 The Client irrevocably appoints DFI and each director of DFI as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
16.1 The Client must inspect all Materials/Equipment on delivery (or the Works on completion) and must within seven (7) days of delivery notify DFI in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow DFI to inspect the Materials/Equipment or to review the Works provided.
16.2 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 (NonExcluded Guarantees).
16.3 DFI acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, DFI makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works/Equipment. DFI’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Client is a consumer within the meaning of the CCA, DFI’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If DFI is required to replace any Materials under this clause or the CCA, but is unable to do so, DFI may refund any money the Client has paid for the Materials.
16.7 If DFI is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then DFI may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
16.8 If the Client is not a consumer within the meaning of the CCA, DFI’s liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the Client by DFI at DFI’s sole discretion;
(b) limited to any warranty to which DFI is entitled, if DFI did not manufacture the Materials;
(c) otherwise negated absolutely.
16.9 Subject to this clause 16, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 16.1; and
(b) DFI has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
16.10 Notwithstanding clauses 16.1 to 16.9 but subject to the CCA, DFI shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Materials;
(b) the Client using the Materials for any purpose other than that for which they were designed;
(c) the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Works by the Client or any third party without DFI’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by DFI;
(f) fair wear and tear, any accident, or act of God.
16.11 In the case of second hand Materials, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by DFI as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that DFI has agreed to provide the Client with the second hand Materials and calculated the Price of the second hand Materials in reliance of this clause 16.11.
16.12 DFI may in its absolute discretion accept non-defective Materials for return in which case DFI may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.
16.13 Notwithstanding anything contained in this clause if DFI is required by a law to accept a return then DFI will only accept a return on the conditions imposed by that law.
17. Intellectual Property
17.1 Where DFI has designed, drawn, written plans or a schedule of Works, or created any Materials/Equipment for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in DFI, and shall only be used by the Client at DFI’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of DFI.
17.2 The Client warrants that all designs, specifications or instructions given to DFI will not cause DFI to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify DFI against any action taken by a third party against DFI in respect of any such infringement.
17.3 The Client agrees that DFI may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or Materials/Equipment which DFI has created for the Client.
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 DFI’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 DFI any money the Client shall indemnify DFI from and against all costs and disbursements incurred by DFI in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, DFI’s contract default fee, and bank dishonour fees).
18.3 Further to any other rights or remedies DFI may have under this contract, if a Client has made payment to DFI, 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 DFI 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 agreement.
18.4 Without prejudice to any other remedies DFI may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions DFI may suspend or terminate the supply of Works/Equipment to the Client. DFI will not be liable to the Client for any loss or damage the Client suffers because DFI has exercised its rights under this clause.
18.5 Without prejudice to DFI’s other remedies at law DFI shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to DFI shall, whether or not due for payment, become immediately payable if:
(a) any money payable to DFI becomes overdue, or in DFI’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 DFI;
(c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
19.1 Without prejudice to any other remedies DFI may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions DFI may suspend or terminate the supply of Works/Equipment to the Client. DFI will not be liable to the Client for any loss or damage the Client suffers because DFI has exercised its rights under this clause.
19.2 DFI may cancel any contract to which these terms and conditions apply or cancel delivery of Works/Equipment at any time before the Works are commenced (or the Materials/Equipment are due to be delivered) by giving written notice to the Client. On giving such notice DFI shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to DFI for Works already performed or Materials/Equipment already provided. DFI shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Client cancels the delivery of Works/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by DFI as a direct result of the cancellation (including, but not limited to, any loss of profits).
20. Dispute Resolution
20.1 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 so 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.
21. Privacy Act 1988
21.1 The Client agrees for DFI 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 DFI.
21.2 The Client agrees that DFI 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.
21.3 The Client consents to DFI being given a consumer credit report to collect overdue payment on commercial credit.
21.4 The Client agrees that personal credit information provided may be used and retained by DFI for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works/Equipment; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works/Equipment; 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 Works/Equipment.
21.5 DFI 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.
21.6 The information given to the CRB may include:
(a) personal information as outlined in 21.1 above;
(b) name of the credit provider and that DFI 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 DFI has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of DFI, 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).
21.7 The Client shall have the right to request (by e-mail) from DFI:
(a) a copy of the information about the Client retained by DFI and the right to request that DFI correct any incorrect information; and
(b) that DFI does not disclose any personal information about the Client for the purpose of direct marketing.
21.8 DFI 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.
21.9 The Client can make a privacy complaint by contacting DFI via e-mail. DFI will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
22. Unpaid Seller’s Rights
22.1 Where the Client has left any item with DFI for repair, modification, exchange or for DFI to perform any other service in relation to the item and DFI has not received or been tendered the whole of any monies owing to it by the Client, DFI shall have, until all monies owing to DFI 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.
22.2 The lien of DFI shall continue despite the commencement of proceedings, or judgment for any monies owing to DFI having been obtained against the Client.
23. Equipment Hire
23.1 Equipment shall at all times remain the property of DFI and is returnable on demand by DFI. In the event that Equipment is not returned to DFI in the condition in which it was delivered DFI retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all DFI shall have right to charge the Client the full cost of replacing the Equipment.
23.2 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 a lien over the Equipment.
(b) not 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 parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by DFI to the Client.
23.3 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, DFI’s interest in the Equipment and agrees to indemnify DFI against physical loss or damage including, but not limited to, the perils of accident, 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.
24. Service of Notices
24.1 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.
24.2 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.
25. Other Applicable Legislation
25.1 At DFI’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 (New South Wales) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
25.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 25.1 each as applicable, except to the extent permitted by the Act where applicable.
26.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
26.2 These terms and conditions and any contract to which they apply shall be governed by the laws New South Wales, of the state in which DFI has its principal place of business, and are subject to the jurisdiction of the courts in Gaulburn, New South Wales.
26.3 Subject to clause 16, DFI 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 DFI of these terms and conditions (alternatively DFI’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works/Equipment on hire).
26.4 Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party.
26.5 The Client agrees that DFI may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for DFI to provide Works/Equipment on hire to the Client.
26.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
26.7 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.
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