1. Definitions
1.1 “Abseilers” means Abseilers United Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Abseilers United Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Abseilers to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between Abseilers and the Client in accordance with clause 4 below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Abseilers’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Abseilers.
3. Change in Control
3.1 The Client shall give Abseilers 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 Abseilers as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At Abseilers’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Abseilers to the Client; or
(b) Abseilers’ quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 Abseilers 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 accessing the site, prerequisite work by any third party not being complete or inaccurate measurements provided by the Client etc.) which are only discovered on commencement of the Services; or
(d) in the event of increases to Abseilers in the cost of labour (including the effects of changes to wage rates due to industry awards) or Goods which are beyond Abseilers’ control.
4.3 At Abseilers’ sole discretion, a deposit may be required.
4.4 The Abseilers may submit a detailed payment claim at intervals not less than one month for Services performed up to the end of each month. The value of Services so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of Goods delivered to the site but not installed.
4.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Abseilers, which may be:
(a) on delivery of the Services;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with Abseilers’ payment schedule;
(d) fourteen (14) days following the date of the invoice which is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Abseilers.
4.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, PayPal, credit card (plus a surcharge of up to five percent (5%) of the Price) or by any other method as agreed to between the Client and Abseilers.
4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Abseilers an amount equal to any GST Abseilers must pay for any supply by Abseilers under this or any other agreement 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.
5. Delivery
5.1 Subject to clause 5.2 it is Abseilers’ responsibility to ensure that the Services start as soon as it is reasonably possible.
5.2 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Abseilers claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Abseilers’ 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 Abseilers that the site is ready.
5.3 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at Abseilers’ address; or
(b) Abseilers (or Abseilers’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.4 At Abseilers’ sole discretion, the cost of delivery is addition to the Price.
5.5 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.6 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Abseilers shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.7 Abseilers may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.8 The Services shall be deemed to be completed when the Services carried out under this contract have been completed in accordance with any plans, instructions and specifications set out and all statutory requirements have been met.
5.9 Any time or date given by Abseilers to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Abseilers will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6. Online Ordering
6.1 The Client acknowledges and agrees that:
(a) Abseilers does not guarantee the websites performance or availability of any of its Goods; and
(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(c) there are inherent hazards in electronic distribution and as such Abseilers cannot warrant against delays or errors in transmitting data between the Client and Abseilers including orders, and you agree that to the maximum extent permitted by law, Abseilers will not be liable for any losses which the Client suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.
6.2 Abseilers reserve the right to terminate your order if it learns that you have provided false or misleading information, interfered with other users or the administration of Abseilers Services, or violated these terms and conditions.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Abseilers is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Abseilers is sufficient evidence of Abseilers’ rights to receive the insurance proceeds without the need for any person dealing with Abseilers to make further enquiries.
7.3 If the Client requests Abseilers to leave Goods outside Abseilers’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
7.4 Where Abseilers is required to undertake Services the Client warrants that the structure of the premises in or upon which these Services are to be undertaken is sound and will sustain the installation and work incidental thereto and Abseilers shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
7.5 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Abseilers will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
7.6 Abseilers shall be under no liability for inferior existing paintwork where Abseilers’ paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish.
7.7 Abseilers shall not be liable whatsoever for any loss or damage to the works (including, but not limited to, painted surfaces) that is caused by any other tradesmen.
7.8 Where the Client has supplied Goods for Abseilers to complete the Services, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in the Goods. Abseilers shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of Goods supplied by the Client.
7.9 Abseilers may at its discretion notify the Client that it requires to store at the worksite materials, fittings and appliances, or plant and tools required for the works, in which event the Client shall supply Abseilers a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Client’s responsibility.
7.10 Any advice, recommendation, information, assistance or service provided by Abseilers in relation to Goods or Services supplied is given in good faith is based on Abseilers’ own knowledge and experience and shall be accepted without liability on the part of Abseilers 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 Goods or Services.
8. Access
8.1 The Client shall ensure that Abseilers has clear and free access to the work site at all times to enable them to undertake the Services. Abseilers shall not be liable for any loss or damage to the site unless due to the negligence of Abseilers.
9. Abseilers’ Responsibilities
9.1 Abseilers obligations under this contract shall be limited to the planned and scheduled provisions of the Services as detailed in the quotation unless otherwise altered and agreed between Abseilers and the Client.
9.2 Abseilers will provide suitable qualified personnel to carry out the Services.
9.3 Abseilers will supply all the necessary cleaning chemicals and equipment required to carry out the cleaning covered under the contract. The Client shall be responsible for any additional consumables supplied by Abseilers outside of the contract terms after delivery of the Services unless agreed by the Client and Abseilers at the time of quotation.
9.4 Any Services not specified in the quotation will be undertaken at an additional cost to the Client and shall be charged for on the basis of Abseilers hourly rate applicable and shall be invoiced in accordance with clause 4.2.
10. Client Responsibilities
10.1 It is the intention of Abseilers and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the Services to be undertaken (where in Abseilers’ opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
10.2 The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify Abseilers against any costs incurred by Abseilers as a consequence of such discovery. Under no circumstances will Abseilers handle removal of asbestos product.
10.3 The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the works and agrees that Abseilers shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.
10.4 The Client agrees one area per floor will be designated for any rubbish generated by Abseilers. The Client accepts responsibility for the removal of this rubbish and agrees removal will be made at no cost to Abseilers.
11. Compliance with Laws
11.1 The Client and Abseilers shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
11.2 The Client agrees that the site will comply with any work health and safety laws (WHS) relating to building/construction sites and any other relevant safety standards or legislation.
11.3 Abseilers agrees to comply with (WHS) standards to ensure that all Services carried out are managed correctly and in a safe manner.
11.4 If the Client fails to comply with this clause and Abseilers incurs additional costs as a result, such costs shall be charged to the Client in accordance with clause 4.2.
11.5 All works are performed in accordance with Australian and New Zealand standards (AS/NZS 1891 & AS/NZS 4488).
12. Insurance
12.1 Abseilers shall have in place comprehensive Workers Compensation and Public Liability Insurances to cover all its employees. Certificate of Currency will be provided to the Client annually under this agreement.
12.2 Contract cleaners that Abseilers may use on the site will also have adequate comprehensive Workers Compensation and Public Liability Insurances. Certificate of Currency for such insurances will be provided to the Client annually upon request.
13. Title
13.1 Abseilers and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Abseilers all amounts owing to Abseilers; and
(b) the Client has met all of its other obligations to Abseilers.
13.2 Receipt by Abseilers 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 Goods passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Goods and must return the Goods to Abseilers on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Abseilers and must pay to Abseilers the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Abseilers and must pay or deliver the proceeds to Abseilers on demand.
(d) 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 Abseilers and must sell, dispose of or return the resulting product to Abseilers as it so directs.
(e) the Client irrevocably authorises Abseilers to enter any premises where Abseilers believes the Goods are kept and recover possession of the Goods.
(f) Abseilers may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Abseilers.
(h) Abseilers may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods 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 Goods that have previously been supplied and that will be supplied in the future by Abseilers 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 Abseilers 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, Abseilers 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 Abseilers;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Abseilers;
(e) immediately advise Abseilers 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 Abseilers 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 waives their 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 their 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 Abseilers, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Client must unconditionally ratify any actions taken by Abseilers under clauses 14.3 to 14.5.
14.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of Abseilers 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).
15.2 The Client indemnifies Abseilers from and against all Abseilers’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Abseilers’ rights under this clause.
15.3 The Client irrevocably appoints Abseilers and each director of Abseilers 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 the Goods on delivery and must within seven (7) days of delivery notify Abseilers 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 as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Abseilers to inspect the Goods.
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 (Non-Excluded Guarantees).
16.3 Abseilers 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, Abseilers makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Abseilers’ 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, Abseilers’ liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If Abseilers is required to replace the Goods under this clause or the CCA, but is unable to do so, Abseilers may refund any money the Client has paid for the Goods.
16.7 If the Client is not a consumer within the meaning of the CCA, Abseilers’ 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 Abseilers at Abseilers’ sole discretion;
(b) limited to any warranty to which Abseilers is entitled, if Abseilers did not manufacture the Goods;
(c) otherwise negated absolutely.
16.8 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) Abseilers 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.
16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, Abseilers 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 the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Abseilers;
(e) fair wear and tear, any accident, or act of God.
16.10 Abseilers may in its absolute discretion accept non-defective Goods for return in which case Abseilers may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
16.11 Notwithstanding anything contained in this clause if Abseilers is required by a law to accept a return then Abseilers will only accept a return on the conditions imposed by that law.
17. Intellectual Property
17.1 Where Abseilers has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Abseilers.
17.2 The Client warrants that all designs, specifications or instructions given to Abseilers will not cause Abseilers to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Abseilers against any action taken by a third party against Abseilers in respect of any such infringement.
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 Abseilers’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes Abseilers any money the Client shall indemnify Abseilers from and against all costs and disbursements incurred by Abseilers in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Abseilers’ contract default fee, and bank dishonour fees).
18.3 Without prejudice to any other remedies Abseilers may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Abseilers may suspend or terminate the supply of Goods to the Client. Abseilers will not be liable to the Client for any loss or damage the Client suffers because Abseilers has exercised its rights under this clause.
18.4 Without prejudice to Abseilers’ other remedies at law Abseilers shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Abseilers shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Abseilers becomes overdue, or in Abseilers’ opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
19. Dispute Resolution
19.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the
dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be 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.
20. Cancellation
20.1 Abseilers may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Abseilers shall repay to the Client any money paid by the Client for the Goods. Abseilers shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Abseilers as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.3 Cancellation of orders for Goods 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.
21. Privacy Act 1988
21.1 The Client agrees for Abseilers 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 Abseilers.
21.2 The Client agrees that Abseilers may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
21.3 The Client consents to Abseilers 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 Abseilers for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; 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 Goods.
21.5 Abseilers 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 Abseilers 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 Abseilers has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Abseilers, 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 Abseilers:
(a) a copy of the information about the Client retained by Abseilers and the right to request that Abseilers correct any incorrect information; and
(b) that Abseilers does not disclose any personal information about the Client for the purpose of direct marketing.
21.8 Abseilers 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 Abseilers via e-mail. Abseilers 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. Other Applicable Legislation
22.1 At Abseilers’ 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 Payment Act 2002 (Victoria), Building and Construction Industry Security of Payments Act 1999 (New South Wales), Construction Contracts Act 2004 (Western Australia), Building and Construction Industry Payments Act 2004 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory of Australia), Building and Construction Industry Security of Payments Act 2009 (Tasmania), Building and Construction Industry Security of Payments Act 2009 (South Australia) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
22.2 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 22.1 (each as applicable), except to the extent permitted by the Act where applicable.
23. General
23.1 The failure by Abseilers to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Abseilers’ right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall
not be affected, prejudiced or impaired.
23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which Abseilers has its principal place of business, and are subject to the jurisdiction of the Manly Courts in New South Wales.
23.3 Subject to clause 16 Abseilers 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 Abseilers of these terms and conditions (alternatively Abseilers’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
23.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Abseilers nor to withhold payment of any invoice because part of that invoice is in dispute.
23.5 Abseilers may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
23.6 The Client agrees that Abseilers may amend these terms and conditions at any time. If Abseilers makes a change to these terms and conditions, then that change will take effect from the date on which Abseilers notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Abseilers to provide Goods to the Client.
23.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
23.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it