TERMS OF TRADE

  1. Definitions
    • “4.S.H.I” means Insulfran Pty Ltd 4 Seasons Home Insulation, its successors and assigns or any person acting on behalf of and with the authority of Insulfran Pty Ltd T/A 4 Seasons Home Insulation.
    • “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting 4.S.H.I to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
      • if there is more than one Client, is a reference to each Client jointly and severally; and
      • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Client’s executors, administrators, successors and permitted assigns.
    • “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by 4.S.H.I 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).
    • “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between 4.S.H.I and the Client in accordance with clause 5
    • “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.

 

  1. Acceptance
    • 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.
    • 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 contract between the Client and 4.S.H.I.
    • 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), the Electronic Transactions Act 2001 (ACT) (whichever is applicable), or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

  1. Errors and Omissions
    • The Client acknowledges and accepts that 4.S.H.I shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by 4.S.H.I in the formation and/or administration of this contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by 4.S.H.I in respect of the Works.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of 4.S.H.I; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

 

  1. Change in Control
    • The Client shall give 4.S.H.I 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 4.S.H.I as a result of the Client’s failure to comply with this clause.

 

  1. Price and Payment
    • At 4.S.H.I’s sole discretion the Price shall be either:
      • as indicated on invoices provided by 4.S.H.I to the Client in respect of Works performed or Materials supplied; or
      • S.H.I’s Price at the date of delivery of the Works according to 4.S.H.I’s current pricelist; or
      • S.H.I’s quoted Price (subject to clause 5.2) which shall be binding upon 4.S.H.I provided that the Client shall accept 4.S.H.I’s quotation in writing within thirty (30) days.
    • S.H.I reserves the right to change the Price:
      • if a variation to the Materials which are to be supplied is requested; or
      • if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
      • where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to site accessibility, safety considerations, prerequisite work by any third party not being completed, obscured building defects, or change of design, etc.) which are only discovered on commencement of the Works; or
      • in the event of increases to 4.S.H.I in the cost of labour or materials which are beyond 4.S.H.I’s control.
    • Variations will be charged for on the basis of 4.S.H.I’s quotation, and will be detailed in writing, and shown as variations on 4.S.H.I’s invoice. The Client shall be required to respond to any variation submitted by 4.S.H.I within ten (10) working days. Failure to do so will entitle 4.S.H.I 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.
    • At 4.S.H.I’s sole discretion a non-refundable deposit may be required.
    • Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by 4.S.H.I, which may be:
      • on completion of the Works; or
      • by way of progress payments in accordance with 4.S.H.I’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
      • thirty (30) days following the date of the invoice given to the Client by 4.S.H.I;
      • thirty (30) days following the end of the month in which a statement is delivered to the Client’s address or address for notices;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by 4.S.H.I.
    • Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, debit card, credit card, or by any other method as agreed to between the Client and 4.S.H.I.
    • The Client acknowledges and accepts that 4.S.H.I will:
      • keep the Client’s personal details, including credit/debit card details until completion of the Works or twenty-one (21) days (whichever is the earlier) as it is deemed necessary by S.H.I;
      • not disclose the Client’s credit/debit card details to any third party;
      • not unnecessarily disclose any of the Client’s personal information, except is accordance with the Privacy Act (clause 18) or where required by law.
    • The Client expressly agrees that, if pursuant to this contract, there are:
      • any unpaid charges; or
      • other amounts due and outstanding by the Client;
      • S.H.I is entitled to immediately charge the Client’s nominated credit/debit card for these amounts and is irrevocably authorised to complete any documentation and take any action to recover from the credit/debit card issuer any and all amounts which may be due by the Client pursuant to the terms of this contract.
    • 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 4.S.H.I nor to withhold payment of any invoice because part of that invoice is in dispute.
    • Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to 4.S.H.I an amount equal to any GST 4.S.H.I must pay for any supply by 4.S.H.I under this or any other contract for the sale of the Materials. 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.

 

  1. Provision of the Works
    • Subject to clause 2 it is 4.S.H.I’s responsibility to ensure that the Works start as soon as it is reasonably possible.
    • The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that 4.S.H.I claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond 4.S.H.I’s control, including but not limited to any failure by the Client to:
      • make a selection; or
      • have the site ready for the Works; or
      • notify 4.S.H.I that the site is ready.
    • S.H.I may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    • Any time specified by 4.S.H.I for delivery of the Works is an estimate only and 4.S.H.I 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 to be supplied at the time and place as was arranged between both parties. In the event that 4.S.H.I is unable to supply the Works as agreed solely due to any action or inaction of the Client, then 4.S.H.I shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

 

  1. Client’s Responsibilities
    • The Client shall ensure that the site is made available, and that 4.S.H.I has clear and free access to the site (and that such access is suitable to accept the weight of laden trucks as may be deemed necessary by 4.S.H.I), at the agreed date/s and time/s, to enable 4.S.H.I to provide the Works, and:
      • S.H.I 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 4.S.H.I; and
      • the Client agrees to indemnify 4.S.H.I against all costs incurred by 4.S.H.I in recovering such vehicles in the event they become bogged or otherwise immovable; and
      • if the Works are interrupted by the failure of the Client to adhere to the work schedule agreed to between 4.S.H.I and the Client, any additional costs will be invoiced to the Client as a variation in accordance with clause 2.
    • It is the intention of 4.S.H.I and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding, safety railing / fencing and harnesses, to enable the Works to be undertaken (where in 4.S.H.I’s 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.
    • The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the Works and agrees that 4.S.H.I shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.

 

  1. Risk
    • If 4.S.H.I retains ownership of the Materials under clause 10 then:
      • where 4.S.H.I 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. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
        • the Client or the Client’s nominated carrier takes possession of the Materials at 4.S.H.I’s address; or
        • the Materials are delivered by 4.S.H.I or 4.S.H.I’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
      • where 4.S.H.I is to both supply and install Materials then 4.S.H.I 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.
    • Notwithstanding the provisions of clause 1 if the Client specifically requests 4.S.H.I to leave Materials outside 4.S.H.I’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.
    • 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 4.S.H.I against any costs incurred by 4.S.H.I as a consequence of such discovery. Under no circumstances will 4.S.H.I handle removal of asbestos product.
    • S.H.I 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, 4.S.H.I accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
    • In the event the Client gives information relating to measurements and quantities of the Materials required to complete the Works, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or 4.S.H.I places an order based on these measurements and quantities. 4.S.H.I accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
    • Any advice, recommendation, information, assistance or service provided by 4.S.H.I in relation to Works and/or Materials supplied is given in good faith, is based on 4.S.H.I’s own knowledge and experience and shall be accepted without liability on the part of 4.S.H.I 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 Works and/or Materials.
    • The Client accepts and acknowledges that where 4.S.H.I requires access to the Client’s roof in accordance with the provisions of the requested Works, 4.S.H.I accepts no liability for any subsequent loss or damage (including, but not limited to, internal water damage) to the Client’s property which may occur during the provision of the Works. Where such loss or damage is due to pre-existing condition of the Client’s roof (including but not limited to, general wear and tear, cracked or chipped tiles, faults or leaks, loose wiring connections and electrical lights and fittings), unless due to 4.S.H.I’s negligence. Where minor damage occurs during the provision of the Works carried out by 4.S.H.I, 4.S.H.I will notify the Client and may (at their sole discretion) provide additional Works to rectify such damage, with any associated cost being the Client’s responsibility.

 

  1. Compliance with Laws
    • The Client and 4.S.H.I shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.
    • The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
    • The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

 

  1. Title
    • S.H.I and the Client agree that ownership of the Materials shall not pass until:
      • the Client has paid 4.S.H.I all amounts owing to 4.S.H.I; and
      • the Client has met all of its other obligations to 4.S.H.I.
    • Receipt by 4.S.H.I 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.
    • It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 1:
      • the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to 4.S.H.I on request.
      • the Client holds the benefit of the Client’s insurance of the Materials on trust for 4.S.H.I and must pay to 4.S.H.I the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
      • the production of these terms and conditions by 4.S.H.I shall be sufficient evidence of 4.S.H.I’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with 4.S.H.I to make further enquiries.
      • 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 4.S.H.I and must pay or deliver the proceeds to 4.S.H.I on demand.
      • 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 4.S.H.I and must sell, dispose of or return the resulting product to 4.S.H.I as it so directs.
      • unless the Materials have become fixtures the Client irrevocably authorises 4.S.H.I to enter any premises where 4.S.H.I believes the Materials are kept and recover possession of the Materials.
      • S.H.I may recover possession of any Materials in transit whether or not delivery has occurred.
      • 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 4.S.H.I.
      • S.H.I may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

 

  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • 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 and/or collateral (account) – being a monetary obligation of the Client to 4.S.H.I for Works – that have previously been supplied and that will be supplied in the future by 4.S.H.I to the Client.
    • The Client undertakes to:
      • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which 4.S.H.I may reasonably require to:
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 11.3(a)(ii);
      • indemnify, and upon demand reimburse, 4.S.H.I for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of 4.S.H.I;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of 4.S.H.I;
      • immediately advise 4.S.H.I of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
    • S.H.I 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.
    • 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.
    • The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by 4.S.H.I, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client shall unconditionally ratify any actions taken by 4.S.H.I under clauses 3 to 11.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 11) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

  1. Security and Charge
    • In consideration of 4.S.H.I agreeing to supply the Materials, 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).
    • The Client indemnifies 4.S.H.I from and against all 4.S.H.I’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising 4.S.H.I’s rights under this clause.
    • The Client irrevocably appoints 4.S.H.I and each director of 4.S.H.I as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.

 

  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify 4.S.H.I 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 as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow 4.S.H.I to inspect the Materials or to review the Works provided.
    • 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).
    • S.H.I acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, 4.S.H.I makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. 4.S.H.I’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, 4.S.H.I’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If 4.S.H.I is required to replace any Materials under this clause or the CCA, but is unable to do so, 4.S.H.I may refund any money the Client has paid for the Materials.
    • If 4.S.H.I 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 4.S.H.I 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.
    • If the Client is not a consumer within the meaning of the CCA, 4.S.H.I’s liability for any defect or damage in the Materials is:
      • limited to the value of any express warranty or warranty card provided to the Client by 4.S.H.I at 4.S.H.I’s sole discretion;
      • limited to any warranty to which 4.S.H.I is entitled, if 4.S.H.I did not manufacture the Materials;
      • otherwise negated absolutely.
    • Subject to this clause 13, returns will only be accepted provided that:
      • the Client has complied with the provisions of clause 1; and
      • S.H.I has agreed that the Materials are defective; and
      • the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      • the Materials are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 13.9 but subject to the CCA, 4.S.H.I shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store any Materials;
      • the Client using the Materials for any purpose other than that for which they were designed;
      • the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • interference with the Works by the Client or any third party without 4.S.H.I’s prior approval;
      • the Client failing to follow any instructions or guidelines provided by 4.S.H.I;
      • fair wear and tear, any accident, or act of God.
    • S.H.I may in its absolute discretion accept non-defective Materials for return in which case 4.S.H.I 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.
    • Notwithstanding anything contained in this clause if 4.S.H.I is required by a law to accept a return then 4.S.H.I will only accept a return on the conditions imposed by that law.

 

  1. Intellectual Property
    • Where 4.S.H.I has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in 4.S.H.I, and shall only be used by the Client at 4.S.H.I’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of 4.S.H.I.
    • The Client warrants that all designs, specifications or instructions given to 4.S.H.I will not cause 4.S.H.I to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify 4.S.H.I against any action taken by a third party against 4.S.H.I in respect of any such infringement.
    • The Client agrees that 4.S.H.I may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which 4.S.H.I has created for the Client.

 

  1. Default and Consequences of Default
    • Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at 4.S.H.I’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes 4.S.H.I any money the Client shall indemnify 4.S.H.I from and against all costs and disbursements incurred by 4.S.H.I in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, 4.S.H.I’s contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies 4.S.H.I may have under this contract, if a Client has made payment to 4.S.H.I, 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 4.S.H.I under this clause 15 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.
    • Without prejudice to 4.S.H.I’s other remedies at law 4.S.H.I shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to 4.S.H.I shall, whether or not due for payment, become immediately payable if:
      • any money payable to 4.S.H.I becomes overdue, or in 4.S.H.I’s opinion the Client will be unable to make a payment when it falls due;
      • the Client has exceeded any applicable credit limit provided by 4.S.H.I;
      • 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

  1. Dispute Resolution
    • 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:
      • referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
      • conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

 

  1. Cancellation
    • Without prejudice to any other remedies 4.S.H.I may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions 4.S.H.I may suspend or terminate the supply of Works to the Client. 4.S.H.I will not be liable to the Client for any loss or damage the Client suffers because 4.S.H.I has exercised its rights under this clause.
    • S.H.I may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice 4.S.H.I shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to 4.S.H.I for Works already performed. 4.S.H.I shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by 4.S.H.I as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • 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.

 

  1. Privacy Act 1988
    • The Client agrees for 4.S.H.I 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 4.S.H.I.
    • The Client agrees that 4.S.H.I may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
      • to assess an application by the Client; and/or
      • to notify other credit providers of a default by the Client; and/or
      • 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
      • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
    • The Client consents to 4.S.H.I being given a consumer credit report to collect overdue payment on commercial credit.
    • The Client agrees that personal credit information provided may be used and retained by 4.S.H.I for the following purposes (and for other agreed purposes or required by):
      • the provision of Works; and/or
      • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      • enabling the collection of amounts outstanding in relation to the Works.
    • S.H.I may give information about the Client to a CRB for the following purposes:
      • to obtain a consumer credit report;
      • allow the CRB to create or maintain a credit information file about the Client including credit history.
    • The information given to the CRB may include:
      • personal information as outlined in 1 above;
      • name of the credit provider and that 4.S.H.I is a current credit provider to the Client;
      • whether the credit provider is a licensee;
      • type of consumer credit;
      • 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);
      • 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 4.S.H.I has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
      • information that, in the opinion of 4.S.H.I, the Client has committed a serious credit infringement;
      • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    • The Client shall have the right to request (by e-mail) from 4.S.H.I:
      • a copy of the information about the Client retained by 4.S.H.I and the right to request that 4.S.H.I correct any incorrect information; and
      • that 4.S.H.I does not disclose any personal information about the Client for the purpose of direct marketing.
    • S.H.I 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.
    • The Client can make a privacy complaint by contacting 4.S.H.I via e-mail. 4.S.H.I 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 oaic.gov.au.

 

  1. Other Applicable Legislation
    • At 4.S.H.I’s sole discretion, if there are any disputes or claims for unpaid Works and/or Materials then the provisions of the Building and Construction Industry Security of Payments Act 1999 (New South Wales), and the Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
    • Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 1 (each as applicable), except to the extent permitted by the Act where applicable.

 

  1. Service of Notices
    • Any written notice given under this contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this contract;
      • by sending it by registered post to the address of the other party as stated in this contract;
      • 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;
      • if sent by email to the other party’s last known email address.
    • 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.

 

  1. Trusts
    • 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 4.S.H.I may have notice of the Trust, the Client covenants with 4.S.H.I as follows:
      • the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • 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;
      • the Client will not without consent in writing of 4.S.H.I (4.S.H.I will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
        • the removal, replacement or retirement of the Client as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

 

  1. General
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of either New South Wales or Australian Capital Territory in which state or territory the Materials and/or Works were provided by S.H.I to the Client however, in the event of a dispute that deems necessary for the matter to be referred to a Magistrates or higher Court then jurisdiction will be subject to the Court in New South Wales in which 4.S.H.I has its principal place of business.
    • Subject to clause 13S.H.I 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 4.S.H.I of these terms and conditions (alternatively 4.S.H.I’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
    • S.H.I may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
    • The Client cannot licence or assign without the written approval of 4.S.H.I.
    • S.H.I may elect to subcontract out any part of the Works 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 4.S.H.I’s sub-4.S.H.Is without the authority of 4.S.H.I.
    • The Client agrees that 4.S.H.I 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 4.S.H.I to provide Works to the Client.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    • Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.