Terms and Conditions

Last updated: December 12, 2018

Please read these Terms of Use (“Terms”, “Terms of Use”) carefully before using the https://www.proactiveservicesolutions.com.au website (the “Service”) operated by ProActive Service Solutions (“us”, “we”, or “our”).

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.

By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.

Intellectual Property

The Service and its original content, features and functionality are and will remain the exclusive property of ProActive Service Solutions and its licensors.

Links To Other Web Sites

Our Service may contain links to third-party web sites or services that are not owned or controlled by ProActive Service Solutions.

ProActive Service Solutions has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that ProActive Service Solutions shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.

Termination

We may terminate or suspend access to our Service immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Governing Law

These Terms shall be governed and construed in accordance with the laws of Australia without regard to its conflict of law provisions.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have between us regarding the Service.

Changes

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will try to provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.

Terms of Trade

D.J & M.A Franey T/A Proactive Service Solutions – Terms & Conditions of Trade
  1. Definitions
    • 1 “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.
    • 2 “PA” means D.J & M.A Franey T/A Proactive Service Solutions, its successors and assigns or any person acting on behalf of and with the authority of D.J & M.A Franey T/A Proactive Service Solutions.
    • 3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting PA to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      • (a) if there is more than one Client, is a reference to each Client jointly and severally; and
      • (b) if the Client is a partnership, it shall bind each partner jointly and severally; and
      • (c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      • (d) includes the Client’s executors, administrators, successors and permitted assigns.
    • 4 “Building Owner” means the person(s), Strata Company, Company etc who actually own the building/property to be treated.
    • 5 “Pesticides” means Australian Pesticides and Veterinary Medicines Authority (APVMA) approved insecticides, herbicides, weedicides, rodenticides or fungicides used to manage and treat Pests.
    • 6 “Services” mean all Services supplied by PA to the Customer at the Customer’s request from time to time.
    • 7 “Treated Areas” means the areas specified in this Inspection/Treatment report which were treated by PA on this occasion.
    • 8 “Pests” means any pest of commercial significance in an urban environment including, but not limited to, cockroaches, fleas, flies, mites, bees, wasps, mosquitoes, spiders, rodents, ants, silverfish, carpet beetles, birds, other vertebrates and weeds. The term “Pests” for the purpose of this document does not include bed bugs (including Cimex lectularius and Cimex hemipterus) or timber pests such as termites, wood borers, fungal decay and chemical delignification.
    • 9 “Services” means all Services (including consultation, manufacturing and/or installation services) or Goods supplied by PA to the Client at the Client’s request from time to time (where the context so permits the terms ‘Services’ or ‘Goods’ shall be interchangeable for the other).
    • 10 “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.
    • 11 “Cookies” means small files which are stored on a user’s computer.  They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.
    • 12 “Price” means the Price payable (plus any GST where applicable) for the Services as agreed between PA and the Client in accordance with clause 7 below.
    • 13 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
  2. Acceptance
    • 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 Services.
    • 2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
    • 3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
    • 4 The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with PA and it has been approved with a credit limit established for the account.
    • 5 In the event that the supply of Services request exceeds the Clients credit limit and/or the account exceeds the payment terms, PA reserves the right to refuse delivery.
    • 6 The Client agrees that they are the Building Owner or have permission from the Building Owner prior to engaging PA to carry out any Services.
    • 7 The Client agrees to advise the occupants of adjacent buildings/properties with common boundaries, of the intended treatment date and time along with any proposed method of treatment.
    • 8 In the event that PA is required to provide the Services urgently, that may require PA’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then PA reserves the right to charge the Client a minimum call out fee based on PA’s standard hourly labour rate, plus travel, plus Goods, unless otherwise agreed between PA and the Client.
    • 9 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
  3. Contract Term
    • 1 Where this contract is for ongoing Services, the Contract Term will be specified in PA’s Service Agreement and will automatically renew on a weekly basis unless terminated by either party in accordance with clause 21.
    • 2 The Client accepts and acknowledges that all fixed contracts are subject to periodic price reviews to allow for increases to PA in the cost of labour and goods, which are beyond the control of PA.
  4. Errors and Omissions
    • 1 The Client acknowledges and accepts that PA shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • (a) resulting from an inadvertent mistake made by PA in the formation and/or administration of this Contract; and/or
      • (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by PA in respect of the Services.
    • 2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of PA; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
  5. Authorised Representatives
    • 1 The Client acknowledges that PA shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to PA, that person shall have the full authority of the Client to order any Services, Goods and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to PA for all additional costs incurred by PA (including PA’s profit margin) in providing any Services, Goods or variation/s requested thereto by the Client’s duly authorised representative.
  6. Change in Control
    • 1 The Client shall give PA not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by PA as a result of the Client’s failure to comply with this clause.
  7. Price and Payment
    • 1 At PA’s sole discretion the Price shall be either:
      • (a) as indicated on invoices provided by PA to the Client in respect of Services performed or Goods supplied; or
      • (b) PA’s quoted Price (subject to clause 2) which shall be binding upon PA provided that the Client shall accept PA’s quotation in writing within thirty (30) days.
    • 2 PA reserves the right to change the Price:
      • (a) if a variation to the Goods which are to be supplied is 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 site access, discovery of asbestos, ready availability of Goods, variations in quantity or volume of Goods to be supplied, prerequisite work by a third party not being completed, inaccurate measurements, plans or specifications supplied by the Client, hard rock or other barriers below the surface, latent soil conditions, iron reinforcing rods in concrete, or hidden pipes and wiring, etc.) which are only discovered on commencement of the Services; or
      • (d) in the event of increases to PA in the cost of labour or Goods which are beyond PA’s
    • 3 Variations will be charged for on the basis of PA’s quotation, and will be detailed in writing, and shown as variations on PA’s invoice. The Client shall be required to respond to any variation submitted by PA within ten (10) working days. Failure to do so will entitle PA 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.
    • 4 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by PA, which may be:
      • (a) on completion of the Services; or
      • (b) by way of progress payments in accordance with PA’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Goods delivered to the site but not yet installed; or
      • (c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
      • (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 PA.
    • 5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and PA.
    • 6 PA may in its discretion allocate any payment received from the Client towards any invoice that PA determines and may do so at the time of receipt or at any time afterwards. On any default by the Client PA may re-allocate any payments previously received and allocated. In the absence of any payment allocation by PA, payment will be deemed to be allocated in such manner as preserves the maximum value of PA’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
    • 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 PA nor to withhold payment of any invoice because part of that invoice is in dispute.
    • 8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to PA an amount equal to any GST PA must pay for any supply by PA under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
  8. Provision of the Services
    • 1 Subject to clause 8.2 it is PA’s responsibility to ensure that the Services start as soon as it is reasonably possible.
    • 2 The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that PA claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond PA’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 Services; or
      • (c) notify PA that the site is ready.
    • 3 At PA’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
    • 4 PA may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    • 5 Any time specified by PA for delivery of the Services is an estimate only and PA will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that PA is unable to supply the Services as agreed solely due to any action or inaction of the Client, then PA shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date, and/or for storage of the Goods.
    • 6 PA shall not be liable for failure to perform any duty or obligation that PA may have under this contract, where such failure has been caused by inclement weather, industrial disturbance, inevitable accident, inability to obtain labour or transportation, structural or environmental conditions, or any other cause outside the reasonable control of PA.
  9. Risk
    • 1 If PA retains ownership of the Goods under clause 15 then where PA is supplying Goods only, all risk for the Goods shall immediately pass to the Client on delivery and the Client must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either the Goods are delivered by PA or PA’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
    • 2 Notwithstanding the provisions of clause 9.1 if the Client specifically requests PA to leave Goods outside PA’s premises for collection or to deliver the Goods to an unattended location then such goods shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Client’s expense.
    • 3 Where PA gives advice or recommendations to the Client, or the Client’s agent, regarding any aspect of the scope of the Services (including but not limited to, a particular course of action, product selection or the condition of the goods supplied by the Client being inferior), and such advice or recommendations are not acted upon, then PA shall require the Client or their agent to authorize commencement of the Services in writing. PA shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services nor will such losses or damages be deemed a defect. If the Client instructs PA to rectify any damage or defects in the goods supplied, this will become a variation to the original quotation and will be charged at PA normal hourly rate.
    • 4 PA 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, PA accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
    • 5 In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or PA places an order based on these measurements and quantities. PA accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
    • 6 The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation thereof and are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe structures or risk) that PA reasonably form the opinion that the Client’s premises is not safe for the Services to proceed then PA shall be entitled to delay the provision of the Services (in accordance with clause 8.2) until PA is satisfied that it is safe for the installation.
    • 7 Where the Client has supplied goods for PA to complete the services, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the goods. PA shall not be responsible for any defects in the works, any loss or damage to the goods (or any part thereof), howsoever arising from the use of goods supplied by the Client.
  10. Pest Control
    • 1 PA offers no guarantee against pest infestation in areas that are unexposed or inaccessible to visual inspection. Further, PA shall not be liable for any loss or damage or costs incurred as a result of infestations that existed in areas or in structural members which were not accessible for visual inspection at the time of delivery of the Services.
    • 2 PA cannot and does not offer to make judgements on or report on the extent of any structural damage, it the Client’s responsibility to seek information of this type from a qualified licensed builder.
    • 3 Where the Services are preventative/remedial subterranean termite or borer work, it is specifically acknowledged by the Client that no inspection or report is made on damage or activity to the building unless expressly stated otherwise in writing by PA.
    • 4 In the event a mister is used on internal pest control, then it is the Client’s responsibility to ensure any fish/reptile tank is covered and any power connection to it is switched off.
    • 5 PA shall not be held liable for any loss, damages or costs howsoever arising from the Client’s failure to comply with this clause; it shall be the Client’s responsibility to (where applicable) prior to the commencement of the Services:
      • (a) for internal Services:
        • (i) take internal bird cages and pet rodents outside; and
        • (ii) empty and remove all pet bowls from the Treated Areas;
        • (iii) cover all food items and utensils;
        • (iv) ensure all dogs, cats and any other pets are moved to a safe place, and away from the Treated Areas; and
      • (b) for external Services:
        • (i) close all doors and windows until the odour has cleared or the technician advises it is safe to re-open;
        • (ii) cover all bird aviaries with plastic sheets prior to external Services commending; and
        • (iii) cover external fish ponds with plastic.
      • 6 While every care will be taken, PA will not be held liable should staining of timbers, fabrics, wall coverings, floor coverings or any other articles occur.
      • 7 The Client acknowledges and accept that pest control can be rendered ineffective if the Client fails to implement PA’s recommended hygiene procedures, by making building and/or landscaping alterations, by the introduction of conductive or infested materials, or by environmental conditionals beyond the control of PA.
  1. Concrete
    • 1 Where the Client has supplied goods for PA to complete the services, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the goods. PA shall not be responsible for any defects in the works, any loss or damage to the goods (or any part thereof), howsoever arising from the use of goods supplied by the Client.
    • 2 The Client acknowledges that variations of colour and texture are inherent in concrete. PA shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between different batches of product.
    • 3 Detailed drawings of any services that will be embedded in the concrete are to be provided to PA prior to commencement of any works. Whilst all due care will be taken no liability will be accepted by PA for damage to the services or any other element embedded in the concrete.
    • 4 PA gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the works such as:
      • (a) hairline cracking of paving and grout; or
      • (b) damage caused by contact with chemicals, solvents, oils or any other substances; or
      • (c) the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.
    • 5 The Client acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Client.
    • 6 PA shall not be liable for any defect in the Services if the Client does not follow PA’s recommendations, including:
      • (a) to water the concrete periodically to limit the risk of possible cracking due to weather conditions;
      • (b) that no foot traffic and/or any vehicles on the concrete for a minimum of forty-eight (48) hours but preferably seven (7) days;
      • (c) that no heavy furniture is to be placed on the concrete area for a minimum of twenty-four (24) hours.
    • 7 Where PA gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the worksite for the laying of concrete slabs, foundations or similar works and such advice or recommendations are not acted upon then PA shall require the Client or their agent to authorise commencement of the works in writing. PA shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the works.
    • 8 The Client shall supply an area suitable for washing out PA’s equipment and for depositing all unused concrete and slurry.
  2. Client’s Responsibilities
    • 1 The Client acknowledges and agrees that it is their responsibility to:
      • (a) ensure that PA has clear and free access to the site at all times to enable them to provide the Services. PA shall not be liable for any loss or damage to the site, unless due to the negligence of PA. In the event of a lock-out, or where PA is turned away or otherwise unable to enter the site due to any action, or inaction of the Client, the Client will be required to pay the full Price for the Services; and
      • (b) ensure that the site is reasonably ready for PA to commence the Services, with minimal tradespersons and works in progress; and
      • (c) have all areas clear to enable the Services to be provided in accordance with any specified schedule; and
      • (d) secure or remove any fragile, delicate, breakable or valuable items, including cash, jewellery, works of art or antiques from those areas that require the Services. PA is unable to accept liability for items of this type that have not been reasonably secured by the Client; and
      • (e) fulfil any special conditions / requirements that may affect PA providing the Services at the site (including, but not limited to, health and safety equipment and/or worksite inductions); and
      • (f) provide PA with an adequate free source of water and power at all times to enable PA to provide the Services.
    • 2 In the event provision of the Services is delayed due to inadequate access to the site, or water and power facilities, then PA reserves the right to charge a reasonable fee for re-providing the Services at a later time and date in accordance with clause 7.2.
    • 3 PA shall not be responsible for the relocation of furniture or equipment heavier than fifteen kilograms (15kgs), as these types of activities pose a danger of injury or could damage property and fittings. Any lifting and movement of furniture, appliances or equipment in excess of fifteen kilograms (15kgs) must be arranged and conducted by the Client prior to the commencement of the Services.
  3. Underground Locations and Hidden Services
    • 1 Prior to PA commencing any work the Client must advise PA of the precise location of all underground services on the site and clearly mark the same. The underground mains & 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.
    • 2 Whilst PA will take all care to avoid damage to any underground services the Client agrees to indemnify PA 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 13.1.
  4. Important Health and Safety Information
    • 1 Both parties agree that they shall at all times comply with the 14.1 provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any work health and safety (WHS) laws relating to the worksite and any other relevant safety standards or legislation.
    • 2 If the Client or other occupants of the property or adjacent buildings/properties believe they are particularly sensitive, or may suffer from allergic reactions, should as a matter of precaution, remain out of the premises for a period of twenty-four (24) hours and not return until after the premises has fully ventilated. PA also recommend that the Client leave any air-conditioners on ‘vent mode’ (so they circulate outside air into the building) for a period of at least four (4) hours after the treatment or after re-occupying.
    • 3 It shall be the Client’s responsibility to avoid any skin contract with the Treated Areas until the insecticides have dried, should the Client suspect anyone has come into contact with a treated area and has been affected in anyway, they shall contact the Poisons Information Centre on 13 11 26 and have this notice with you.
    • 4 When requested by PA the Building Owner, Client, tenant, agent, or occupier must protect or remove any people, animals, birds, fish, household goods or possessions during the treatment period.
  5. Title
    • 1 PA and the Client agree that ownership of the Goods shall not pass until:
      • (a) the Client has paid PA all amounts owing to PA; and
      • (b) the Client has met all of its other obligations to PA.
    • 2 Receipt by PA 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.
    • 3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 15.1:
      • (a) the Client is only a bailee of the Goods and unless the Goods have become fixtures must return the Goods to PA on request;
      • (b) the Client holds the benefit of the Client’s insurance of the Goods on trust for PA and must pay to PA the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
      • (c) the production of these terms and conditions by PA shall be sufficient evidence of PA’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with PA to make further enquiries;
      • (d) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for PA and must pay or deliver the proceeds to PA on demand;
      • (e) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of PA and must sell, dispose of or return the resulting product to PA as it so directs;
      • (f) unless the Goods have become fixtures the Client irrevocably authorises PA to enter any premises where PA believes the Goods are kept and recover possession of the Goods;
      • (g) PA may recover possession of any Goods in transit whether or not delivery has occurred;
      • (h) 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 PA;
      • (i) PA may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
  1. Personal Property Securities Act 2009 (“PPSA”)
    • 1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
    • 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 and/or collateral (account) – being a monetary obligation of the Client to PA for Services – that have previously been supplied and that will be supplied in the future by PA to the Client.
    • 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 PA 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 3(a)(i) or 16.3(a)(ii);
      • (b) indemnify, and upon demand reimburse, PA for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
      • (c) not register a financing change statement in respect of a security interest without the prior written consent of PA;
      • (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of PA;
      • (e) immediately advise PA 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.
    • 4 PA 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.
    • 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.
    • 6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • 7 Unless otherwise agreed to in writing by PA, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
    • 8 The Client shall unconditionally ratify any actions taken by PA under clauses 16.3 to 16.5.
    • 9 Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
  2. Security and Charge
    • 1 In consideration of PA agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, 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).
    • 2 The Client indemnifies PA from and against all PA’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PA’s rights under this clause.
    • 3 The Client irrevocably appoints PA and each director of PA as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.
  3. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • 1 The Client must inspect all Goods on delivery (or the Services on completion) and must within seven (7) days of delivery notify PA 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/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow PA to inspect the Goods or to review the Services provided.
    • 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).
    • 3 PA acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • 4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, PA makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Services. PA’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • 5 If the Client is a consumer within the meaning of the CCA, PA’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • 6 If PA is required to replace any Goods under this clause or the CCA, but is unable to do so, PA may refund any money the Client has paid for the Goods.
    • 7 If PA is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then PA may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Goods which have been provided to the Client which were not defective.
    • 8 If the Client is not a consumer within the meaning of the CCA, PA’s liability for any defect or damage in the Goods is:
      • (a) limited to the value of any express warranty or warranty card provided to the Client by PA at PA’s sole discretion;
      • (b) limited to any warranty to which PA is entitled, if PA did not manufacture the Goods;
      • (c) otherwise negated absolutely.
    • 9 Subject to this clause 18, returns will only be accepted provided that:
      • (a) the Client has complied with the provisions of clause 1; and
      • (b) PA 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.
    • 10 Notwithstanding clauses 18.1 to 18.9 but subject to the CCA, PA shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • (a) the Client failing to properly maintain or store any Goods;
      • (b) the Client using the Goods for any purpose other than that for which they were designed;
      • (c) the Client continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • (d) interference with the Services by the Client or any third party without PA’s prior approval;
      • (e) the Client failing to follow any instructions or guidelines provided by PA;
      • (f) fair wear and tear, any accident, or act of God.
    • 11 Notwithstanding anything contained in this clause if PA is required by a law to accept a return then PA will only accept a return on the conditions imposed by that law.
  4. Intellectual Property
    • 1 Where PA has designed, drawn, written plans or a schedule of Services, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in PA, and shall only be used by the Client at PA’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of PA.
    • 2 The Client warrants that all designs, specifications or instructions given to PA will not cause PA to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify PA against any action taken by a third party against PA in respect of any such infringement.
    • 3 The Client agrees that PA may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which PA has created for the Client.
  5. Default and Consequences of Default
    • 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 PA’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • 2 If the Client owes PA any money the Client shall indemnify PA from and against all costs and disbursements incurred by PA in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, PA’s contract default fee, and bank dishonour fees).
    • 3 Further to any other rights or remedies PA may have under this Contract, if a Client has made payment to PA, 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 PA under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    • 4 Without prejudice to PA’s other remedies at law PA shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to PA shall, whether or not due for payment, become immediately payable if:
      • (a) any money payable to PA becomes overdue, or in PA’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 PA;
      • (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.
  1. Cancellation
    • 1 Without prejudice to any other remedies PA may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions PA may suspend or terminate the supply of Services to the Client. PA will not be liable to the Client for any loss or damage the Client suffers because PA has exercised its rights under this clause.
    • 2 PA may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice PA shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to PA for Services already performed. PA shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • 3 In the event that the Client cancels the delivery of Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by PA as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • 4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
  2. Privacy Policy
    • 1 All emails, documents, images or other recorded information held or used by PA is Personal Information, as defined and referred to in clause 22.3, and therefore considered Confidential Information. PA 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”). PA acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by PA that may result in serious harm to the Client, PA will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    • 2 Notwithstanding clause 22.1, privacy limitations will extend to PA in respect of Cookies where transactions for purchases/orders transpire directly from PA’s website.  PA agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      • (a) IP address, browser, email client type and other similar details;
      • (b) tracking website usage and traffic; and
      • (c) reports are available to PA when PA sends an email to the Client, so PA may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via PA’s website.

  • 3 The Client agrees for PA 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 Client in relation to credit provided by PA.
  • 4 The Client agrees that PA 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.
  • 5 The Client consents to PA being given a consumer credit report to collect overdue payment on commercial credit.
  • 6 The Client agrees that personal credit information provided may be used and retained by PA for the following purposes (and for other agreed purposes or required by):
    • (a) the provision of Services; and/or
    • (b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
    • (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
    • (d) enabling the collection of amounts outstanding in relation to the Services.
  • 7 PA 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.
  • 8 The information given to the CRB may include:
    • (a) Personal Information as outlined in 3 above;
    • (b) name of the credit provider and that PA 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 PA has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
    • (g) information that, in the opinion of PA, 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).
  • 9 The Client shall have the right to request (by e-mail) from PA:
    • (a) a copy of the Personal Information about the Client retained by PA and the right to request that PA correct any incorrect Personal Information; and
    • (b) that PA does not disclose any Personal Information about the Client for the purpose of direct marketing.
  • 10 PA 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 Contract or is required to be maintained and/or stored in accordance with the law.
  • 11 The Client can make a privacy complaint by contacting PA via e-mail. PA 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.

 

  1. Service of Notices
    • 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.
    • 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.
  2. Trusts
    • 1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not PA may have notice of the Trust, the Client covenants with PA as follows:
      • (a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • (b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
      • (c) the Client will not without consent in writing of PA (PA will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        • (i) the removal, replacement or retirement of the Client as trustee of the Trust;
        • (ii) any alteration to or variation of the terms of the Trust;
        • (iii) any advancement or distribution of capital of the Trust; or
        • (iv) any resettlement of the trust property.
  1. General
    • 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.
    • 2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of Queensland in which PA has its principal place of business, and are subject to the jurisdiction of the courts in that state.
    • 3 Subject to clause 18, PA 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 PA of these terms and conditions (alternatively PA’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
    • 4 PA may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    • 5 The Client cannot licence or assign without the written approval of PA.
    • 6 PA may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of PA’s sub-contractors without the authority of PA.
    • 7 The Client agrees that PA may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for PA to provide Services to the Client.
    • 8 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.
    • 9 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.

Please note that a larger print version of these terms and conditions is available from PA on request. #37872 © Copyright – EC Credit Control 1999 – 2018

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