CSM Service Bodies – Terms and Conditions
In these Terms:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
“Agreement” means any agreement for the provision of goods or services by the Seller to the Customer;
“consumer” is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;
“Customer” means the person, jointly and severally if more than one, acquiring goods or services from the Seller;
“goods” means goods supplied by the Seller to the Customer;
“PPSA” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
“services” means services supplied by RXI to the Customer in relation to the goods, including installation and fitment services; and
“Terms” means these Terms and Conditions of Trade.
1.1. “Seller” or “CSM” means CSM Service Bodies Pty Ltd ABN 77 660 532 874, its successors and assigns or any person acting on behalf of and with the authority of CSM Service Bodies Pty Ltd ABN 77 660 532 874.
1.2. “Client” means the person/s buying the Goods (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3. “Goods” means all Goods or Services supplied by the Seller 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. “Equipment” means all Equipment including any accessories supplied on hire by the Seller to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by the Seller to the Client.
1.5. “Price” means the Price payable (plus any GST where applicable) for the Goods and/or Equipment hire as agreed between the Seller and the Client in accordance with clause 4 below.
1.6. “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1. Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.
2.2. These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Seller.
2.3. 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.
2.4. These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on the Seller’s website. If there are any inconsistencies between the two documents, then the terms and conditions contained in this document shall prevail.
2.5 Installation of Goods
2.5.1 Subject to clause 2.5.2, the Customer must install the goods. 2.5.2 RXI and the Customer may agree that RXI will install the goods. 2.5.3 If RXI installs the goods, then the Customer must: (a) specify the exact configuration of the goods to be installed; and (b) make their vehicle available to RXI to perform the installation services. Where RXI determine that another configuration is more practicable then the Customer deems RXI’s decision to be that of the Customer. 2.5.4 If the Customer requests any alterations to the configuration of the installed goods as specified in clause 2.5.3(a), RXI may increase the price to account for the variation. 2.5.5 To the extent permitted by law and subject to clause 13, RXI will not be liable to the Customer in any way arising out of or in connection with the installation of the goods. In any event RXI Liability is capped at $1000.
3. Change in Control
3.1. The Client shall give the Seller 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 the Seller as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1. At the Seller’s sole discretion, the Price shall be either:
a) as indicated on any invoice provided by the Seller to the Client; or
b) the Price as at the date of delivery of the Goods/Equipment according to the Seller’s current price list; or
c) the Seller’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of fourteen (14) days.
4.2. The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange
and/or international freight and insurance charges, or as a result of increases to the Seller in the cost of materials and labour) will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by the Seller within ten (10) working days. Failure to do so will entitle the Seller 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.
4.3. At the Seller’s sole discretion, a non-refundable deposit may be required.
4.4. Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by the Seller, which may be:
a) on delivery of the Goods/Equipment;
b) before delivery of the Goods/Equipment;
c) by way of instalments/progress payments in accordance with the Seller’s payment schedule;
d) thirty (30) days following the end of the month in which a statement 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 the Seller.
4.5. 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 the Seller.
4.6. 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 the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
4.7. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off 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 of Goods/Equipment
5.1. Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
a) the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at the Seller’s address; or
b) the Seller (or the Seller’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
5.2. At the Seller’s sole discretion, the cost of delivery is in addition to the Price.
5.3. The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the Goods/Equipment as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery of the Goods/Equipment and/or the storage of the Goods.
5.4. The Seller may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5. Any time or date given by the Seller to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and the Seller 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) the Seller do 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 the Seller cannot warrant against delays or errors in transmitting data between the customer and the Seller including orders, and you agree that to the maximum extent permitted by law, the Seller 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. The Seller 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 the Seller Services, or violated these terms and conditions.
6.3. Upon placing an order or a request for a quote via the Seller’s website, the Client accept and agrees that the Seller reserves the right to contact the Client direct which may be either by a CSM Representative or a Registered Dealer and that the Client’s personal information and inquiry details will only be disclosed to the Seller’s affiliated third partly suppliers to enable that party to ascertain and provide the information necessary about the Seller’s Goods and Services.
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, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7.3. If the Client requests the Seller to leave Goods outside the Seller’s 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. The Seller 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, the Seller accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8. Goods On Consignment
8.1. Where Goods are supplied on consignment the following provisions apply specifically to those Goods:
a) the Goods shall be at the Client’s risk from the time of delivery and the Client shall be responsible for insuring the Goods.
b) the Client may retain possession of the Goods until the Client sells them or the Seller requires re-delivery of them to the Seller, whichever first occurs.
c) if the Seller requires re-delivery of the Goods such re-delivery shall be at the Client’s cost.
d) the Client shall notify the Seller on a fortnightly basis of all consignment Goods sold during that fortnightly period and shall within seven (7) days of that fortnightly advice pay the Seller for the Goods sold.
9. Title To Goods
9.1. The Seller and the Client agree that ownership of the Goods shall not pass until: (a) the Client has paid the Seller all amounts owing to the Seller; and (b) the Client has met all of its other obligations to the Seller.
9.2. Receipt by the Seller 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.
9.3. It is further agreed that:
a) until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to the Seller on request.
b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Seller and must pay to the Seller 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 the Seller and must pay or deliver the proceeds to the Seller 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 the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
e) the Client irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
f) the Seller 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 the Seller.
h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment that has previously been supplied and that will be supplied in the future by the Seller to the Client.
10.3. 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 the Seller 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 10.3(a)(i) or 10.3(a)(ii);
b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby;
c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment in favour of a third party without the prior written consent of the Seller;
e) immediately advise the Seller of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
10.4. The Seller 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.
10.5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7. Unless otherwise agreed to in writing by the Seller, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8. The Client must unconditionally ratify any actions taken by the Seller under clauses 10.3 to 10.5.
10.9. Subject to any express provisions to the contrary (including those contained in this clause 10) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1. In consideration of the Seller agreeing to supply the Goods/Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2. The Client indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
11.3. The Client irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
12. Client’s Disclaimer
12.1. The Client hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by the Seller, and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1. The Client must inspect the Goods/Equipment on delivery and must within twenty-four (24) hours of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow the Seller to inspect the Goods/Equipment.
13.2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
13.3. The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non Excluded Guarantees.
13.4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5. If the Client is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of Schedule 2. However if goods are transformed by the customer or used for any income producing activity then the customer is not a consumer so is not covered by the CCA.
13.6. If the Seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may refund any money the Client has paid for the Goods.
13.7. If the Client is not a consumer within the meaning of the CCA, the Seller’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 the Seller at the Seller’s sole discretion; (b) limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods; (c) otherwise negated absolutely.
13.8. Subject to this clause 12, returns will only be accepted provided that: (a) the Client has complied with the provisions of clause 13.1; and (b) the Seller 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.
13.9. Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, the Seller 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/Equipment; (b) the Client using the Goods/Equipment for any purpose other than that for which they were designed; (c) the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Client failing to follow any instructions or guidelines provided by the Seller; (e) fair wear and tear, any accident, or act of God.
13.10. The Seller may in its absolute discretion accept non-defective Goods for return in which case the Seller may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
13.11. Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.
14. Intellectual Property
14.1. Where the Seller has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Seller.
14.2. The Client warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
14.3. The Client agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller has created for the Client and/or any photographs of the same that may include any (part thereof) particular personal items in which case would not be considered a breach of any intellectual property rights of you or any third party.
14.4. Specifications and information provided by the Seller or on the Seller’s website are given in good faith based on the Seller’s knowledge, experience, or information provided to the Seller by manufacturers and/or suppliers, or derived from sources (including but not limited to all descriptive specifications, illustrations, drawings, data dimensions stated in our fact sheets, price lists, advertising material) believed to be accurate at the time the information is received by the Seller and are by way of a general description of Goods only, therefore it is recommended if the Client has any concerns as to the suitability of Goods or Services provided to the Client or through the Seller’s website in respect of the use of the Goods or Services or their suitability for a particular use that the Client contact the Seller or seek an external independent professional opinion. The Seller will not accept liability if the Client chooses not to follow the Seller’s recommendation to verify such information prior to use.
15. Default and Consequences of Default
15.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2. If the Client owes the Seller any money the Client shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s contract default fees, and bank dishonour fees).
15.3. Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods/Equipment to the Client. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
15.4. Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
a) any money payable to the Seller becomes overdue, or in the Seller’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 the Seller;
c) 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
d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16.1. Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods/Equipment to the Client. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
16.2. The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice the Seller shall repay to the Client any money paid by the Client for the Goods/Equipment. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.3. In the event that the Client cancels delivery of the Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.4. Cancellation of orders for Goods/Equipment 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.
17. Privacy Act 1988
17.1. The Client agrees for the Seller 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 the Seller.
17.2. The Client agrees that the Seller 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.
17.3. The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
17.4. The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):
a) the provision of Goods/Equipment; and/or
b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or
c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
d) enabling the collection of amounts outstanding in relation to the Goods/Equipment.
17.5. The Seller 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.
17.6. The information given to the CRB may include:
a) personal information as outlined in 17.1 above;
b) name of the credit provider and that the Seller 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 the Seller has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
g) information that, in the opinion of the Seller, 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).
17.7. The Client shall have the right to request (by e-mail) from the Seller:
a) a copy of the information about the Client retained by the Seller and the right to request that the Seller correct any incorrect information; and
b) that the Seller does not disclose any personal information about the Client for the purpose of direct marketing.
17.8. The Seller 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.
17.9. The Client can make a privacy complaint by contacting the Seller via e-mail. The Seller 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.
18. Unpaid Seller’s Rights
18.1. Where the Client has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other service in relation to the item and the Seller has not received or been tendered the whole of any moneys owing to it by the Client, the Seller shall have, until all moneys owing to the Seller are paid: (a) a lien on the item; and (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
18.2. The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Seller having been obtained against the Client.
19. Equipment Hire
19.1. Equipment shall at all times remain the property of the Seller and is returnable on demand by the Seller. In the event that Equipment is not returned to the Seller in the condition in which it was delivered the Seller retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all the Seller shall have right to charge the Client the full cost of replacing the Equipment.
19.2. The Client shall;
a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.
b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Seller to the Client.
19.3. The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, the Seller’s interest in the Equipment and agrees to indemnify the Seller against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
20. Service of Notices
20.1. 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.
20.2. 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.
21. Dispute Resolution
21.1. 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.
22.1. 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.
22.2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts in that state.
22.3. Subject to clause 12 the Seller 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 the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4. Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party.
22.5. The Client agrees that the Seller 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 the Seller to provide Goods to the Client.
22.6. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.7. Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.