Terms and Conditions – AJW Shipwright Australia
1.1 “AJW” means A J Woodall Nominees Pty Ltd ATF The Helm Trust T/A A J Woodall Shipwright, its successors and assigns or any person acting on behalf of and with the authority of A J Woodall Nominees Pty Ltd ATF The Helm Trust T/A A J Woodall Shipwright.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting AJW to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Works” means all Works or Materials supplied by AJW 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).
1.4 “Materials” shall mean Materials required to complete the Works or any other products supplied by AJW to the Client at the Client’s request from time to time.
1.5 “Vessel” shall mean the boat described in any documentation supplied by AJW to the Client.
1.6 “Estimated Cost” means AJW’s best estimate of the cost pertaining to the Works.
1.7 “Estimated Period of Works” shall mean the approximate time frame that AJW deems to be required to complete the Works.
1.8 “Contract Price” means the Contract Price of the Works (as agreed between AJW and the Client) specified (and shall include any adjustments made under the provisions contained in this contract) and shall be in Australian ($AUD) Dollars, unless specifically stated herein.
1.9 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
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 contract between the Client and AJW.
2.3 The Client accepts and acknowledges that the Contract Price may be different from the Estimated Cost, and if significantly greater, shall not be deemed as a breach of this agreement.
2.4 Notwithstanding any remedies available under the CCA, AJW shall not be liable for any loss of income or other monetary gains where the Vessel is inoperable due to the delay or non-arrival of any outside sourced components that are beyond the control of AJW.
2.5 In the event that the Materials and/or Works provided by AJW are the subject of an insurance claim that the Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by AJW and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
2.6 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 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that AJW 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 AJW 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 AJW in respect of the Works.
3.2 In the event, such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of AJW; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give AJW 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 AJW as a result of the Client’s failure to comply with this clause.
5. Contract Price and Payment
5.1 At AJW’s sole discretion the Contract Price shall be either:
(a) as indicated on invoices provided by AJW to the Client in respect of Works performed or Materials supplied; or
(b) AJW’s Contract Price at the date of delivery of the Works according to AJW’s current pricelist; or
(c) AJW’s quoted Contract Price (subject to clause 5.2) which shall be binding upon AJW provided that the Client shall accept AJW’s quotation in writing within thirty (30) days.
5.2 AJW reserves the right to change the Contract Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, inclement weather conditions, work required for pre-existing conditions that are not apparent on a visual inspection, prerequisite work by any third party not being completed, delays in sourcing Materials to complete the Works, etc) which are only discovered on commencement of the Works; or
(d) in the event of increases to AJW in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond AJW’s control.
5.3 In the event of a variation as per clause 5.2 being executed, the Estimated Cost, Contract Price and Estimated Period of Works will be varied accordingly. Variations will be charged for on the basis of AJW’s quotation, and will be detailed in writing, and shown as variations on AJW’s
invoice. The Client shall be required to respond to any variation submitted by AJW within ten (10) working days. Failure to do so will entitle AJW 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.
5.4 At AJW’s sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Works being of the essence, the Contract Price will be payable by the Client on the date/s determined by AJW, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with AJW’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
(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 Client by AJW.
5.6 AJW may submit a detailed payment claim at intervals not less than weekly for work performed up to the end of each week. The value of work so performed shall include the reasonable value of authorised variations and the value of Materials procured but not installed.
5.7 Payment may be made by cash, cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction) of the Contract Price), or by any other method as agreed to between the Client and AJW.
5.8 The Client shall not be entitled to set off against, or deduct from the Contract Price, any sums owed or claimed to be owed to the Client by AJW nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Contract Price does not include GST. In addition to the Contract Price the Client must pay to AJW an amount equal to any GST AJW must pay for any supply by AJW under this or any other agreement 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 Contract Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Contract Price except where they are expressly included in the Contract Price.
6. Contract Price Calculation
6.1 The Contract Price shall be calculated in the following manner:
(a) the number of hours of work performed in carrying out the Works, multiplied by the rate of the person performing the Works;
(b) plus the cost of:
(i) any Materials, goods or equipment supplied in the course of the Works plus a mark-up of ten percent (10%);
(ii) any services provided by subcontractors where applicable;
(iii) the value of any additional work that may arise from a variation as per clause 5.2;
(iv) any yard, shed or lease costs incurred by AJW;
(v) and additional costs associated with disruptions (including but not limited to, suspension of the Works due to failure to comply with payment conditions).
(c) less the costs of any agreed reductions to the scope of the Works.
7. Estimated Cost
7.1 The Client accepts that an Estimated Cost is:
(a) not a fixed price contract;
(b) based on:
(i) a visual only inspection;
(ii) a description of the Vessel provided by the Client;
(iii) the scope of Works as agreed.
7.2 The Client accepts that accurate assessments to the extent of rot damage, material degradation, fractures, contamination and infestations to the Vessel cannot be ascertained by a visual inspection. While AJW can provide an Estimated Cost to remedy such conditions, the Client shall be liable for the full payment of the costs associated with the remedial Works being calculated by the time actually taken multiplied by the applicable rate at the time.
8. Delivery of the Works
8.1 Subject to clause 8.2 it is AJW’s responsibility to ensure that the Works start as soon as it is reasonably possible.
8.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that AJW claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond AJW’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the Vessel ready for the Works; or
(c) notify AJW that the Vessel is ready.
8.3 AJW 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.
8.4 Any time or date given by AJW to the Client is an estimate only. AJW shall not be liable for any loss or damage whatsoever due to failure by AJW to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of AJW.
9. Estimated Period of Works
9.1 The Estimated Period of Works is based on the assumption that all Materials, goods, equipment, labour, weather conditions, the date of commencement and other contingencies are as expected.
9.2 Changes to any condition to those mentioned in clause 9.1 may require a variation to the Estimated Period of Works time frame for completion.
10. General Risk
10.1 If AJW retains ownership of the Materials under clause 16 then:
(a) where AJW 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:
(i) the Client or the Client’s nominated carrier takes possession of the Materials at AJW’s address; or
(ii) the Materials are delivered by AJW or AJW’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(b) where AJW is to both supply and install Materials then AJW 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.
10.2 Notwithstanding the provisions of clause 10.1 if the Client specifically requests AJW to leave Materials outside AJW’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.
10.3 In the case of an undisclosed or unknown pre-existing condition, AJW will immediately advise the Client of the same and shall provide the Client with an estimate for the full repair.
10.4 The Client acknowledges that AJW is only responsible for parts that are replaced by AJW and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Client agrees to indemnify AJW against any loss or damage to the Works, or caused by the goods, or any part thereof howsoever arising.
10.5 Where AJW are required to tow a vessel, either on water or road, at any time, AJW shall not be liable for (and the Client indemnifies AJW against) any damages that may arise during towing unless it arises from the recklessness or wilful misconduct of AJW or its employees.
11. Timber Risk
11.1 Timber is a natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst AJW will make every effort to match sales samples to the finished Materials AJW accepts no liability whatsoever where such samples differ to the finished Materials supplied.
11.2 Timber is a hydroscopic material subject to expansion and contraction, therefore AJW will accept no responsibility for gaps that may appear in the flooring and/or decking or other surfaces during prolonged periods of extreme weather conditions.
11.3 The Client acknowledges that Materials supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
12. Paint Risk
12.1 The Client acknowledges that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. AJW will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
12.2 AJW shall not be liable for inferior existing paintwork where AJW’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish.
12.3 AJW shall not be held liable for the quality of the Works if the Client does not follow AJW’s recommendations as to the number of coats of paint required to obtain the final finish if the Client chooses to accept a reduced Contract Price based on fewer coats of paint.
13. Dimensions, Plans and Specifications
13.1 All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless AJW and the Client agree otherwise in writing.
13.2 Where the Client is to supply AJW with any design plans or specifications (including, but not limited to CAD drawings) the Client shall be responsible for providing accurate data. AJW shall not be liable whatsoever for any errors in the Materials that are caused by incorrect or inaccurate data being supplied by the Client.
13.3 If the giving of an estimate or quotation for the supply of Materials involves AJW estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of AJW’s estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
13.4 Should the Client require any changes to AJW’s estimated measurements and quantities, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.
14. Client’s Responsibilities
14.1 The Client warrants that all information pertaining to the Vessel is true and accurate to the best of the Client’s knowledge, information and belief.
14.2 AJW shall be entitled to rely on the accuracy of the disclosed information provided to AJW in relation to the Vessel’s condition, tile, history, construction, surface treatments, and the use of the Vessel.
14.3 The Client acknowledges that it is their sole responsibility to ensure the Vessel is insured adequately or at all.
14.4 The Client shall be responsible for all equipment and personal affects on-board or attached to the Vessel and shall not hold AJW liable for any loss or damage of the same unless due to the negligence of AJW or its employees.
15. Testing of Vessel
15.1 AJW or its employees may test drive or carry out tests on the Vessel at AJW’s discretion and may if requested by the Client collect or re-deliver the Vessel when nominated by the Client. AJW will not be liable for (and the Client indemnifies AJW) any damages caused to, or by, the Vessel during such tests, collecting or delivery unless it arises from the recklessness or wilful misconduct of AJW or its employees.
16.1 AJW and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid AJW all amounts owing to AJW; and
(b) the Client has met all of its other obligations to AJW.
16.2 Receipt by AJW 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.
16.3 It is further agreed that:
(a) until ownership of the Materials passes to the Client in accordance with clause 16.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to AJW on request.
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for AJW and must pay to AJW the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c) the production of these terms and conditions by AJW shall be sufficient evidence of AJW’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with AJW to make further enquiries.
(d) 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 AJW and must pay or deliver the proceeds to AJW on demand.
(e) 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 AJW and must sell, dispose of or return the resulting product to AJW as it so directs.
(f) unless the Materials have become fixtures the Client irrevocably authorises AJW to enter any premises where AJW believes the Materials are kept and recover possession of the Materials.
(g) AJW may recover possession of any Materials in transit whether or not delivery has occurred.
(h) 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 AJW.
(i) AJW may commence proceedings to recover the Contract Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
17. Personal Property Securities Act 2009 (“PPSA”)
17.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
17.2 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 Materials that have previously been supplied and that will be supplied in the future by AJW to the Client.
17.3 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 AJW 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 17.3(a)(i) or 17.3(a)(ii);
(b) indemnify, and upon demand reimburse, AJW 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;
(c) not register a financing change statement in respect of a security interest without the prior written consent of AJW;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of AJW; and
(e) immediately advise AJW 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.
17.4 AJW 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.
17.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
17.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
17.7 Unless otherwise agreed to in writing by AJW, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
17.8 The Client shall unconditionally ratify any actions taken by AJW under clauses 17.3 to 17.5.
17.9 Subject to any express provisions to the contrary (including those contained in this clause 17) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
18. Security and Charge
18.1 In consideration of AJW 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).
18.2 The Client indemnifies AJW from and against all AJW’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising AJW’s rights under this clause.
18.3 The Client irrevocably appoints AJW and each director of AJW as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 18 including, but not limited to, signing any document on the Client’s behalf.
19. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
19.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify AJW 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 AJW to inspect the Materials or to review the Works provided.
19.2 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).
19.3 AJW acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
19.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, AJW makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. AJW’s liability in respect of these warranties is limited to the fullest extent permitted by law.
19.5 If the Client is a consumer within the meaning of the CCA, AJW’s liability is limited to the extent permitted by section 64A of Schedule 2.
19.6 If AJW is required to replace any Materials under this clause or the CCA, but is unable to do so, AJW may refund any money the Client has paid for the Materials.
19.7 If AJW 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 AJW 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.
19.8 If the Client is not a consumer within the meaning of the CCA, AJW’s liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the Client by AJW at AJW’s sole discretion;
(b) limited to any warranty to which AJW is entitled, if AJW did not manufacture the Materials;
(c) otherwise negated absolutely.
19.9 Subject to this clause 19, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 19.1; and
(b) AJW has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
19.10 Notwithstanding clauses 19.1 to 19.9 but subject to the CCA, AJW 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 Materials;
(b) the Client using the Materials for any purpose other than that for which they were designed;
(c) the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Works by the Client or any third party without AJW’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by AJW;
(f) fair wear and tear, any accident, or act of God.
19.11 In the case of second hand Materials, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second-hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by AJW as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that AJW has agreed to provide the Client with the second-hand Materials and calculated the Contract Price of the second-hand Materials in reliance of this clause 19.11.
19.12 AJW may in its absolute discretion accept non-defective Materials for return in which case AJW 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.
19.13 Notwithstanding anything contained in this clause if AJW is required by a law to accept a return then AJW will only accept a return on the conditions imposed by that law.
20. Intellectual Property
20.1 Where AJW 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 AJW, and shall only be used by the Client at AJW’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of AJW.
20.2 The Client warrants that all designs, specifications or instructions given to AJW will not cause AJW to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify AJW against any action taken by a third party against AJW in respect of any such infringement.
20.3 The Client agrees that AJW may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which AJW has created for the Client.
21. Default and Consequences of Default
21.1 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 AJW’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
21.2 If the Client owes AJW any money the Client shall indemnify AJW from and against all costs and disbursements incurred by AJW in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AJW’s contract default fee, and bank dishonour fees).
21.3 Without prejudice to any other remedies AJW may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions AJW may suspend or terminate the supply of Works to the Client. AJW will not be liable to the Client for any loss or damage the Client suffers because AJW has exercised its rights under this clause.
21.4 Without prejudice to AJW’s other remedies at law AJW shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to AJW shall, whether or not due for payment, become immediately payable if:
(a) any money payable to AJW becomes overdue, or in AJW’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 AJW;
(c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
22.1 Without prejudice to any other remedies AJW may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions AJW may suspend or terminate the supply of Works to the Client. AJW will not be liable to the Client for any loss or damage the Client suffers because AJW has exercised its rights under this clause.
22.2 AJW 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 AJW shall repay to the Client any sums paid in respect of the Contract Price, less any amounts owing by the Client to AJW for Works already performed. AJW shall not be liable for any loss or damage whatsoever arising from such cancellation.
22.3 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 AJW as a direct result of the cancellation (including, but not limited to, any loss of profits).
22.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
23. Privacy Act 1988
23.1 The Client agrees for AJW 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 AJW.
23.2 The Client agrees that AJW 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.
23.3 The Client consents to AJW being given a consumer credit report to collect overdue payment on commercial credit.
23.4 The Client agrees that personal credit information provided may be used and retained by AJW for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
23.5 AJW 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.
23.6 The information given to the CRB may include:
(a) personal information as outlined in 23.1 above;
(b) name of the credit provider and that AJW 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 AJW has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of AJW, 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).
23.7 The Client shall have the right to request (by e-mail) from AJW:
(a) a copy of the information about the Client retained by AJW and the right to request that AJW correct any incorrect information; and
(b) that AJW does not disclose any personal information about the Client for the purpose of direct marketing.
23.8 AJW 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.
23.9 The Client can make a privacy complaint by contacting AJW via e-mail. AJW 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.
24. Unpaid Seller’s Rights
24.1 Where the Client has left any item with AJW for repair, modification, exchange or for AJW to perform any other service in relation to the item and AJW has not received or been tendered the whole of any monies owing to it by the Client, AJW shall have, until all monies owing to AJW 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.
24.2 The lien of AJW shall continue despite the commencement of proceedings, or judgment for any monies owing to AJW having been obtained against the Client.
25. Service of Notices
25.1 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.
25.2 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.
26.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any Trust (“Trust”) then whether or not AJW may have notice of the Trust, the Client covenants with AJW as follows:
(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of AJW (AJW will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
27.1 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.
27.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which AJW has its principal place of business, and are subject to the jurisdiction of the courts in Western Australia.
27.3 Subject to clause 19 AJW 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 AJW of these terms and conditions (alternatively AJW’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
27.4 AJW may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
27.5 The Client cannot licence or assign without the written approval of AJW.
27.6 AJW 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 AJW’s sub-contractors without the authority of AJW.
27.7 The Client agrees that AJW 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 AJW to provide Works to the Client.
27.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
27.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
A J Woodall Shipwright – Terms & Conditions of Trade © Copyright – EC Credit Control 1999 – 2017