1. Definitions
1.1 “Acknowledgment Document” means the document signed by the Customer in conjunction with these Terms and Conditions of Trade and applicable if Precision elects, whereby the Customer acknowledges the extent and effect of the provision of security the Customer provides to Precision in consideration of the provision of Goods or Services.
1.2 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Precision to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors, and permitted assigns.
1.3 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.4 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice, or other document or amendments expressed to be supplemental to this Contract.
1.5 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using Precision’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.7 “Precision” means Precision Cabinet Makers Pty Ltd ATF J A & L M Schoof Family Trust & M & S Schoof Family Trust T/A Precision Cabinet Makers, its successors and assigns or any person acting on behalf of and with the authority of Precision Cabinet Makers Pty Ltd ATF J A & L M Schoof Family Trust & M & S Schoof Family Trust T/A Precision Cabinet Makers.
1.8 “Price” means the Price payable (plus any GST where applicable) for the Services as agreed between Precision and the Customer in accordance with clause 6 below.
1.9 “Services” means all Services (including consultation, manufacturing and/or installation services) or Goods supplied by Precision to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Services’ or ‘Goods’ shall be interchangeable for the other).
2. Acceptance
2.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Services.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges and accepts that the supply of:
(a) Services on credit shall not take effect until the Customer has completed a credit application with Precision and it has been approved with a credit limit established for the account. In the event that the supply of Services requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Precision reserves the right to refuse delivery; and
(b) Goods for accepted orders may be subject to availability and if, for any reason, the Goods are not or cease to be available, Precision reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 6.2. In all such cases Precision will notify the Customer in advance of any such substitution, and also reserves the right to place the Customer’s order and/or Services on hold, as per clause 7.2 until such time as Precision and the Customer agree to such changes.
2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Authorised Representatives
3.1 Unless otherwise limited as per clause 3.2 the Customer agrees that should the Customer introduce any third-party to Precision as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Goods or Services on the Customer’s behalf and/or to request any variation to the Services on the Customer’s behalf (such authority to continue until all requested Services have been completed or the Customer otherwise notifies Precision in writing that said person is no longer the Customer’s duly authorised representative).
3.2 In the event that the Customer’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise Precision in writing of the parameters of the limited authority granted to their representative.
3.3 The Customer specifically acknowledges and accepts that they will be solely liable to Precision for all additional costs incurred by Precision (including Precision’s profit margin) in providing any Goods, Services or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).
4. Errors and Omissions
4.1 The Customer acknowledges and accepts that Precision shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Precision in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Precision in respect of the Services.
4.2 In circumstances where the Customer is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) (“Customer Error“). The Customer must pay for all Goods it orders from Precision notwithstanding that such Goods suffer from a Customer Error and notwithstanding that the Customer has not taken or refuses to take delivery of such Goods. Precision is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Customer Errors.
5. Change in Control
5.1 The Customer shall give Precision not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including, but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by Precision as a result of the Customer’s failure to comply with this clause.
6. Price and Payment
6.1 At Precision’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by Precision to the Customer in respect of Services performed or Goods supplied; or
(b) Precision’s quoted Price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 Precision reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested;
(b) if a variation to the Services originally scheduled (including, any applicable plans or specifications) is requested;
(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, obscured site defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos) or prerequisite work by any third-party not being completed, etc.) which are only discovered on commencement of the Services; or
(d) in the event of increases to Precision in the cost of labour or Goods which are beyond Precision’s control.
6.3 Variations will be charged for on the basis of Precision’s quotation, and will be detailed in writing, and shown as variations on Precision’s invoice. The Customer shall be required to respond to any variation submitted by Precision within ten (10) working days. Failure to do so will entitle Precision 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.
6.4 At Precision’s sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for Goods, in accordance with any quotation provided by Precision or as notified to the Customer prior to the placement of an order for Goods.
6.5 Time for payment for the Services being of the essence, the Price will be payable by the Customer on the date/s determined by Precision, which may be:
(a) on completion of the Services;
(b) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Precision.
6.6 Payment may be made by cash, electronic/on-line banking, or by any other method as agreed to between the Customer and Precision.
6.7 Precision may in its discretion allocate any payment received from the Customer towards any invoice that Precision determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer, Precision may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Precision, payment will be deemed to be allocated in such manner as preserves the maximum value of Precision’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Precision nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Customer must notify Precision in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as Precision investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in Precision placing the Customer’s account into default and subject to default interest in accordance with clause 18.1.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Precision an amount equal to any GST Precision must pay for any supply by Precision under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set-off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
7. Provision of the Services
7.1 Subject to clause 7.2 it is Precision’s responsibility to ensure that the Services start as soon as it is reasonably possible.
7.2 The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Precision claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Precision’s control, including, but not limited to, any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify Precision that the site is ready.
7.3 The cost of delivery will be payable by the Customer in accordance with the quotation provided by Precision to the Customer, or as otherwise notified to the Customer prior to the placement of an order for Goods/ Services.
7.4 Precision may deliver the Services in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.5 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery.
7.6 Any time specified by Precision for delivery of the Services is an estimate only and Precision will not be liable for any loss or damage incurred by the Customer because of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. If Precision is unable to supply the Services as agreed solely due to any action or inaction of the Customer, then Precision shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date, and/or for storage of the Goods.
8. Risk
8.1 If Precision retains ownership of the Goods under clause 13 then:
(a) where Precision is supplying Goods only, all risk for the Goods shall immediately pass to the Customer on delivery and the Customer must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either:
(i) the Customer or the Customer’s nominated carrier takes possession of the Goods at Precision’s address; or
(ii) the Goods are delivered by Precision or Precision’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
(b) where Precision is to both supply and install Goods then Precision shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Customer.
8.2 Notwithstanding the provisions of clause 8.1 if the Customer specifically requests Precision to leave Goods outside Precision’s premises for collection or to deliver the Goods to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Customer’s expense.
8.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Precision is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Precision is sufficient evidence of Precision’s rights to receive the insurance proceeds without the need for any person dealing with Precision to make further enquiries.
8.4 Any advice, recommendation, information, assistance, or service provided by Precision in relation to the Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on Precision’s own knowledge and experience and shall be accepted without liability on the part of Precision. Where such advice or recommendations are not acted upon then Precision shall require the Customer or their agent to authorise commencement of the Services in writing. Precision shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services. Accordingly, Precision offers no warranty in regards to the aforementioned.
8.5 Precision shall be entitled to rely on the accuracy of any plans, specifications, and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, Precision accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8.6 The Customer warrants that any structures to which the Goods are to be affixed are able to withstand the installation thereof and are of suitable capacity to handle the Goods once installed. If for any reason (including, the discovery of asbestos, defective or unsafe structures or risk) that Precision reasonably form the opinion that the Customer’s premises is not safe for the Services to proceed then Precision shall be entitled to delay the provision of the Services (in accordance with clause 7.2) until Precision is satisfied that it is safe for the installation.
8.7 Marble Caesarstone and Granite, being:
(a) stone products that have natural colour and shade tones, markings, and veining may vary from colour samples provided. Precision gives no guarantee (expressed or implied) that colour samples will match the Goods supplied. Precision will make every effort to match colour samples to the Goods supplied but will not be liable in any way whatsoever for colour samples differing from the Goods supplied; and
(b) porous products, therefore, all products supplied by Precision are sealed for protection. However, oil and other acidic substances are prone to causing discolouration and staining if left on surfaces for some time. The Customer agrees to indemnify Precision against any damage occurring after delivery and installation.
8.8 The Customer acknowledges and accepts that:
(a) under no circumstances, will Precision handle removal of asbestos product. In the event asbestos (or other hazardous material) is discovered on the worksite:
(i) Precision shall suspend the Services;
(ii) the Customer shall be fully responsible for the resolution of any resulting problems; and
(iii) any additional cost incurred by Precision shall be added to the Price under clause 6.2.
(b) Goods (including, but not limited to, paint, timber, vinyl, and acrylic etc.) supplied may:
(i) exhibit variations in shade tone, colour, texture, markings, veining, surface and finish, and may fade or change colour over time. Precision will make every effort to match batches/samples of the Goods supplied in order to minimise such variations, but shall not be liable in any way whatsoever where such variations occur;
(ii) expand, contract, or distort as a result of exposure to heat, cold, weather;
(iii) mark or stain if exposed to certain substances; and
(iv) be damaged or disfigured by impact or scratching.
8.9 Precision accepts no responsibility for any damage or performance related problems with any Goods where they have not been used and/or maintained in accordance with Precision’s and/or the manufacturers’ recommendations.
9. Worksite Access and Condition
9.1 Precision is not responsible for the removal of rubbish from or clean-up of the building/construction worksite/s. All rubbish generated by Precision will be placed in a designated area appointed by the Customer but the responsibility of removal of same is the Customer or the Customer’s agent, unless otherwise agreed.
9.2 The Customer shall ensure that Precision has clear and free access to the worksite at all times to enable them to undertake the Services. Precision shall not be liable for any loss or damage to the worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of Precision.
9.3 It is the Customer’s responsibility to provide Precision, while at the worksite, with adequate access to available water, electricity, toilet and washing facilities as required.
9.4 Where Precision requires that Goods, tools etc. required for the Services be stored at the worksite, the Customer shall supply Precision a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft, or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Customer’s responsibility.
9.5 Worksite Inductions
(a) in the event the Customer requires an employee or sub-contractor of Precision to undertake a worksite induction during working hours, the Customer will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Customer shall be liable to pay Precision’s standard (and/or overtime, if applicable) hourly labour rate; or
(b) where Precision is in control of the worksite, the Customer and/or the Customers third-party contractors must initially carry out Precision’s Health & Safety induction course before access to the worksite will be granted. Inspection of the worksite during the course of the Services will be by appointment only and unless otherwise agreed, in such an event the Customer and/or third-party acting on behalf of the Customer must at all times be accompanied by Precision.
10. Underground Locations
10.1 Prior to Precision commencing the Services the Customer must advise Precision of the precise location of all underground services on the worksite and clearly mark the same. The underground mains and services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the worksite.
10.2 Whilst Precision will take all care to avoid damage to any underground services the Customer agrees to indemnify Precision in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1.
11. Customer’s Responsibilities
11.1 It is the intention of Precision, and agreed by the Customer, that it is the responsibility of the Customer to:
(a) remove any furniture or personal items from the vicinity of the Services, and agrees that Precision shall not be liable for any damage caused to those items through the Customer’s failure to comply with this clause; and
(b) provide adequate dust sheets to protect the Customer’s furniture and décor. Precision will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any sanding process; and
(c) extinguish all naked flames prior to coating including, but not limited to, pilot lights, heaters etc.
12. Compliance with Laws
12.1 The Customer and Precision shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
12.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
12.3 Where the Customer has supplied products for Precision to complete the Services, the Customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the intended use and any faults inherent in those products. However, if in Precision’s opinion, it is believed that the materials supplied are non-conforming products as per state regulations, then Precision shall be entitled, without prejudice, to halt the Services until the appropriate conforming materials are sourced and all costs associated with such a change to the plans will be invoiced in accordance with clause 6.2.
13. Title
13.1 Precision and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Precision all amounts owing to Precision; and
(b) the Customer has met all of its other obligations to Precision.
13.2 Receipt by Precision 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, until ownership of the Goods passes to the Customer in accordance with clause 13.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to Precision on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Precision and must pay to Precision the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Precision and must pay or deliver the proceeds to Precision on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Precision and must sell, dispose of or return the resulting product to Precision as it so directs;
(e) the Customer irrevocably authorises Precision to enter any premises where Precision believes the Goods are kept and recover possession of the Goods;
(f) Precision may recover possession of any Goods in transit whether or not delivery has occurred;
(g) the Customer 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 Precision; and
(h) Precision may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
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 Customer 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 Precision to the Customer, and the proceeds from such Goods.
14.3 The Customer 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 Precision 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, Precision 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 Precision;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third-party without the prior written consent of Precision; and
(e) immediately advise Precision of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
14.4 Precision and the Customer 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 Customer 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 Customer 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 Precision, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Customer must unconditionally ratify any actions taken by Precision under clauses 14.3 to 14.5.
14.9 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of Precision agreeing to supply the Goods and/or provide its Services and as acknowledged by Precision in accordance with any Acknowledgment Document the Customer grants Precision a security interest by way of a floating charge (registerable by Precision pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Customer or owned by the Customer in the future, including but not limited to those set out in any Acknowledgment Document, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods and/or Services under this Contract and/or permit Precision to appoint a receiver to the Customer in accordance with the Corporations Act 2001 (Cth).
15.2 The Customer indemnifies Precision from and against all Precision’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Precision’s rights under this clause.
15.3 In the event that the Customer defaults or breaches any term of this Contract and as a result, the security provided in clauses 13.1, 14.2 and 15.1 as applicable, is deemed insufficient by Precision to secure the repayment of monies owed by the Customer to Precision, the Customer hereby grants Precision a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Customer now, or owned by the Customer in the future, to secure the performance of the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money), in accordance with the Acknowledgement Document.
16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
16.1 The Customer must inspect the Goods on delivery (or the Services on completion) and must within thirty (30) days of delivery notify Precision in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Precision to inspect the Goods or to review the Services provided.
16.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
16.3 Precision 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, Precision makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Services. Precision’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Customer is a consumer within the meaning of the CCA, Precision’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If Precision is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then Precision may refund any money the Customer has paid for the Services but only to the extent that such refund shall take into account the value of Services and Goods which have been provided to the Customer which were not defective.
16.7 If the Customer is not a consumer within the meaning of the CCA, Precision’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 Customer by Precision at Precision’s sole discretion;
(b) limited to any warranty to which Precision is entitled, if Precision 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 Customer has complied with the provisions of clause 16.1; and
(b) Precision has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’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, Precision 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 Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Services by the Customer or any third-party without Precision’s prior approval;
(e) the Customer failing to follow any instructions or guidelines provided by Precision; or
(f) fair wear and tear, any accident, or act of God.
16.10 Precision may in its absolute discretion accept non-defective Goods for return in which case Precision may require the Customer 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 Precision is required by a law to accept a return, then Precision will only accept a return on the conditions imposed by that law.
16.12 Subject to clause 16.1, customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.
17. Intellectual Property
17.1 Where Precision has designed, drawn, written plans or a schedule of Services, or created any products for the Customer, then the copyright in any designs and drawings, documents, plans, schedules, and products shall remain the property of Precision. Under no circumstances may such designs, drawings and documents be used without the express written approval of Precision.
17.2 The Customer warrants that all designs, specifications, or instructions given to Precision will not cause Precision to infringe any patent, registered design, or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Precision against any action taken by a third-party against Precision in respect of any such infringement.
17.3 The Customer agrees that Precision may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Precision has created for the Customer.
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 Precision’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes Precision any money, the Customer shall indemnify Precision from and against all costs and disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Customer would be liable;
in regard to legal costs on a solicitor and own client basis incurred in exercising Precision’s rights under these terms and conditions, internal administration fees, Precision’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
18.3 Further to any other rights or remedies Precision may have under this Contract, if a Customer has made payment to Precision, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Precision under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
18.4 Without prejudice to Precision’s other remedies at law Precision shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Precision shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Precision becomes overdue, or in Precision’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Precision;
(c) the Customer 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 Customer or any asset of the Customer.
19. Cancellation
19.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Goods and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
19.2 If Precision, due to reasons beyond Precision’s reasonable control, is unable to deliver any Goods and/or Services to the Customer, Precision may cancel any Contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services have commenced by giving written notice to the Customer. On giving such notice Precision shall repay to the Customer any money paid by the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to Precision for Services already performed. Precision shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 The Customer may cancel delivery of the Goods and/or Services by written notice served within forty-eight (48) hours of placement of the order. If the Customer cancels delivery in accordance with this clause 19.3, the Customer will not be liable for the payment of any costs of Precision, except where a deposit is payable in accordance with clause 6.4. Failure by the Customer to otherwise accept delivery of the Goods and/or Services shall place the Customer in breach of this Contract.
19.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.
20. Privacy Policy
20.1 All emails, documents, images, or other recorded information held or used by Precision is Personal Information, as defined and referred to in clause 20.3, and therefore considered Confidential Information. Precision acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Precision acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Precision that may result in serious harm to the Customer, Precision will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to Precision in respect of Cookies where the Customer utilises Precision’s website to make enquiries. Precision agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Precision when Precision sends an email to the Customer, so Precision may collect and review that information (“collectively Personal Information”)
If the Customer consents to Precision’s use of Cookies on Precision’s website and later wishes to withdraw that consent, the Customer may manage and control Precision’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
20.3 The Customer agrees that Precision may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
20.4 The Customer consents to Precision being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
20.5 The Customer agrees that personal credit information provided may be used and retained by Precision for the following purposes (and for other agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
20.6 Precision may give information about the Customer to a CRB for the following purposes to:
(a) obtain a consumer credit report; or
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
20.7 The information given to the CRB may include:
(a) Personal Information as outlined in 20.3 above;
(b) name of the credit provider and that Precision is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’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 (provided Precision is a member of an approved OAIC External Disputes Resolution Scheme), 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 Customer no longer has any overdue accounts and Precision has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Precision, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
20.8 The Customer shall have the right to request (by e-mail) from Precision:
(a) a copy of the Personal Information about the Customer retained by Precision and the right to request that Precision correct any incorrect Personal Information; and
(b) that Precision does not disclose any Personal Information about the Customer for the purpose of direct marketing.
20.9 Precision will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
20.10 The Customer can make a privacy complaint by contacting Precision via e-mail. Precision will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
21. Building and Construction Industry (Security of Payment) Act 2021
21.1 At Precision’s sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Building and Construction Industry (Security of Payment) Act 2021 may apply.
21.2 Nothing in this Contract is intended to have the effect of contracting out of any provisions of the Building and Construction Industry (Security of Payment) Act 2021 of Western Australia, except to the extent permitted by the Act where applicable.
22. Service of Notices
22.1 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; or
(e) if sent by email to the other party’s last known email address.
22.2 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.
23. Trusts
23.1 If the Customer at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not Precision may have notice of the Trust, the Customer covenants with Precision as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust, the trustees and the trust fund;
(b) the Customer has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be 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 Customer against the Trust, the trustees and the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not during the term of the Contract without consent in writing of Precision (Precision will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust fund or trust property.
24. General
24.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
24.2 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, that provision shall be severed from this Contract, and the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
24.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of Western Australia, the state in which Precision has its principal place of business and are subject to the jurisdiction of the Perth Courts in that state. These terms prevail over all terms and conditions of the Customer (even if they form part of the Customer’s purchase order).
24.4 Precision may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent provided the assignment does not cause detriment to the Customer.
24.5 The Customer cannot licence or assign without the written approval of Precision.
24.6 Precision may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Precision’s sub-contractors without the authority of Precision.
24.7 The Customer agrees that Precision may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Precision to provide Services to the Customer.
24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to Precision, once the parties agree that the Force Majeure event has ceased.
24.9 Both parties warrant that they have the power to enter 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.
24.10 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
24.11 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.