Terms & Conditions of Trade - Arcom Group Pty Ltd

 

1. Definitions

1.1 “Arcom” means Arcom Group Pty Ltd ATF Sunshield Unit Trust T/A Arcom Group Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Arcom Group Pty Ltd ATF Sunshield Unit Trust T/A Arcom Group Pty Ltd.

1.2 “Client” means the person/s buying the Goods (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3 “Goods” means all Goods or Services supplied by Arcom to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4 “Equipment” means all Equipment including any accessories supplied on hire by Arcom to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Arcom to the Client.

1.5 “Price” means the Price payable (plus any GST where applicable) for the Goods and/or Equipment hire as agreed between Arcom and the Client in accordance with clause 5 below.

1.6 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999”.

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.

2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Arcom.

3. Electronic Transactions Act 2000

3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 7 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

4. Change in Control

4.1 The Client shall give Arcom 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 Arcom as a result of the Client’s failure to comply with this clause.

5. Price and Payment

5.1 At Arcom’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by Arcom to the Client; or

(b) the Price as at the date of delivery of the Goods/Equipment according to Arcom’s current price list; or

(c) Arcom’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2 Arcom reserves the right to change the Price in the event of a variation to Arcom’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to fluctuations in the currency exchange rate, or as a result of increases to Arcom in the cost of materials and labour) will be charged for on the basis of Arcom’s quotation and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by Arcom within ten (10) working days. Failure to do so will entitle Arcom 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.

5.3 At Arcom’s sole discretion a non-refundable deposit may be required.

5.4 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by Arcom, which may be:

(a) on delivery of the Goods/Equipment;

(b) before delivery of the Goods/Equipment;

(c) by way of instalments/progress payments in accordance with Arcom’s payment schedule;

(d) payment for approved Clients shall be due fourteen (14) days following the date of the invoice.

5.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated, then payment shall be due seven (7) days following the date of the invoice.

5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction) only Visa and MasterCard will be accepted, or by any other method as agreed to between the Client and Arcom.

5.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Arcom nor to withhold payment of any invoice because part of that invoice is in dispute.

5.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Arcom an amount equal to any GST Arcom must pay for any supply by Arcom under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

6. Delivery of Goods/Equipment

6.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:

(a) the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at Arcom’s address; or

(b) Arcom (or Arcom’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.

6.2 At Arcom’s sole discretion the costs of delivery are:

(a) included in the Price; or

(b) in addition to the Price; or

 (c) for the Client’s account.

6.3 Arcom may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.4 Any time specified by Arcom for delivery of the Goods/Equipment is an estimate only and Arcom will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods/Equipment to be delivered at the time and place as was arranged between both parties. In the event that Arcom is unable to supply the Goods/Equipment as agreed solely due to any action or inaction of the Client, then Arcom shall be entitled to charge a reasonable fee for redelivery and/or storage.

7. Risk

7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Arcom is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Arcom is sufficient evidence of Arcom’s rights to receive the insurance proceeds without the need for any person dealing with Arcom to make further enquiries.

7.3 If the Client requests Arcom to leave Goods outside Arcom’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.

7.4 The Client acknowledges and agrees that some Goods may take up to thirty (30) days to completely dry. Arcom shall not be held liable for any damage caused to the Goods during this period. In the event the Client has any concerns regarding this, the Client needs to contact Arcom as soon as possible.

7.5 All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.

7.6 Whilst every care is taken by Arcom to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. Arcom shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.

7.7 Arcom is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by Arcom to match virtual colours with physical colours, Arcom will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra including return freight, the charge will be contra against final invoice.

7.8 Arcom shall not be held liable for inks, films or laminations wearing off through general wear and tear, or fading due to exposure to weather conditions.

8. Thermal Stress Glass Breakages

8.1 The Client acknowledges and agrees that installation of glass film or selected window furnishings can increase the risk of glass breakage due to the additional thermal stresses. This is especially evident in applications using older window frames, locations where building movement can/has occurred, pre-tinted glass, IGUs (double glazing), laminated glass, angled/ranked glass and windows with shading, or where additional factors such as ambient temperature and weather patterns, and the conditions of the glass edge are apparent. Arcom recommends applying clear film to all glass to significantly mitigate this risk.

8.2 The Client accepts responsibility for any consequential action, loss, failure or damage occurring as a result of any installation by Arcom, including glass breakages due to thermal stresses. At all times Arcom will take all due care to ensure the right window film is used to mitigate glass breakage risks; however, Arcom cannot accept liability for thermal stress glass breakages following window film installation if Arcom was not responsible for the quality of the original glazing installation.

8.3 The Client acknowledges and agrees that the application of tinted solar control film to pre-tinted glass increases the risk of glass breakage due to thermal stresses.

8.4 The films provided for selection are selected to reduce the risk of thermal stress glass breakages, whilst aiming to maximise the benefits required. Additional factors that affect this selection are ambient temperature and weather patterns, the condition of the glass edge following window installation and building movement. These factors are beyond Arcoms control and is the Clients responsibility to seriously consider this when selecting films.

9. Access

9.1 The Client shall ensure that Arcom has clear and free access to the work site at all times to enable them to undertake the Services. Arcom shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Arcom.

10. Title To Goods

10.1 Arcom and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid Arcom all amounts owing to Arcom; and

(b) the Client has met all of its other obligations to Arcom.

10.2 Receipt by Arcom 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.

10.3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 10.1:

(a) the Client is only a bailee of the Goods and must return the Goods to Arcom on request.

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Arcom and must pay to Arcom the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Arcom and must pay or deliver the proceeds to Arcom on demand.

 (d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Arcom and must sell, dispose of or return the resulting product to Arcom as it so directs.

(e) the Client irrevocably authorises Arcom to enter any premises where Arcom believes the Goods are kept and recover possession of the Goods.

(f) Arcom may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Arcom.

(h) Arcom may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

11. Personal Property Securities Act 2009 (“PPSA”)

11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

11.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment and/or collateral (account) – being a monetary obligation of the Client to Arcom for Services – that have previously been supplied and that will be supplied in the future by Arcom to the Client.

11.3 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 Arcom 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 11.2(a)(i) or 11.2(a)(ii);

(b) indemnify, and upon demand reimburse, Arcom for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of Arcom;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment and/or collateral (account) in favour of a third party without the prior written consent of Arcom;

(e) immediately advise Arcom of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.

11.4 Arcom 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.

11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

11.7 Unless otherwise agreed to in writing by Arcom, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

11.8 The Client must unconditionally ratify any actions taken by Arcom under clauses 11.2 to 11.5.

11.9 Subject to any express provisions to the contrary (including those contained in this clause 11) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

12. Security and Charge

12.1 In consideration of Arcom agreeing to supply the Goods/Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

12.2 The Client indemnifies Arcom from and against all Arcom’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Arcom’s rights under this clause.

12.3 The Client irrevocably appoints Arcom and each director of Arcom as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.

13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

13.1 The Client must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify Arcom in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow Arcom to inspect the Goods/Equipment.

13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

13.3 Arcom acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Arcom makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. Arcom’s liability in respect of these warranties is limited to the fullest extent permitted by law.

13.5 If the Client is a consumer within the meaning of the CCA, Arcom’s liability is limited to the extent permitted by section 64A of Schedule 2.

13.6 If Arcom is required to replace the Goods under this clause or the CCA, but is unable to do so, Arcom may refund any money the Client has paid for the Goods.

13.7 If the Client is not a consumer within the meaning of the CCA, Arcom’s liability for any defect or damage in the Goods is:

(a) limited to the value of any express warranty or warranty card provided to the Client by Arcom at Arcom’s sole discretion;

 (b) limited to any warranty to which Arcom is entitled, if Arcom did not manufacture the Goods;

(c) otherwise negated absolutely.

13.8 Subject to this clause 13, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 13.1; and

(b) Arcom has agreed that the Goods are defective; and

(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and

(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, Arcom shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Client failing to properly maintain or store any Goods/Equipment;

(b) the Client using the Goods/Equipment for any purpose other than that for which they were designed;

(c) the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Client failing to follow any instructions or guidelines provided by Arcom;

(e) fair wear and tear, any accident, or act of God.

13.10 Arcom may in its absolute discretion accept non-defective Goods for return in which case Arcom may require the Client to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.

13.11 Notwithstanding anything contained in this clause if Arcom is required by a law to accept a return then Arcom will only accept a return on the conditions imposed by that law.

13.12 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.

14. Intellectual Property

14.1 Where Arcom has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of Arcom. Under no circumstances may such designs, drawings and documents be used without the express written approval of Arcom.

14.2 The Client warrants that all designs, specifications or instructions given to Arcom will not cause Arcom to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Arcom against any action taken by a third party against Arcom in respect of any such infringement.

14.3 The Client agrees that Arcom may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Arcom has created for the Client.

15. Default and Consequences of Default

15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Arcom’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

15.2 If the Client owes Arcom any money the Client shall indemnify Arcom from and against all costs and disbursements incurred by Arcom in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Arcom’s contract default fee, and bank dishonour fees).

15.3 Further to any other rights or remedies Arcom may have under this contract, if a Client has made payment to Arcom, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Arcom under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.

15.4 Without prejudice to Arcom’s other remedies at law Arcom shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Arcom shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Arcom becomes overdue, or in Arcom’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 Arcom;

(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

16. Compliance with Laws

16.1 The Client and Arcom shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.

16.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.

16.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

17. Cancellation

17.1 Without prejudice to any other remedies Arcom may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Arcom may suspend or terminate the supply of Goods/Equipment to the Client. Arcom will not be liable to the Client for any loss or damage the Client suffers because Arcom has exercised its rights under this clause.

17.2 Arcom may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice Arcom shall repay to the Client any money paid by the Client for the Goods/Equipment. Arcom shall not be liable for any loss or damage whatsoever arising from such cancellation.

17.3 In the event that the Client cancels delivery of the Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by Arcom as a direct result of the cancellation (including, but not limited to, any loss of profits).

17.4 Cancellation of orders for Goods/Equipment made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

18. Privacy Act 1988

18.1 The Client agrees for Arcom 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 Arcom.

18.2 The Client agrees that Arcom 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.

18.3 The Client consents to Arcom being given a consumer credit report to collect overdue payment on commercial credit.

18.4 The Client agrees that personal credit information provided may be used and retained by Arcom for the following purposes (and for other agreed purposes or required by):

(a) the provision of Goods/Equipment; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d) enabling the collection of amounts outstanding in relation to the Goods/Equipment.

18.5 Arcom 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.

18.6 The information given to the CRB may include:

(a) personal information as outlined in 18.1 above;

(b) name of the credit provider and that Arcom 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 Arcom has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of Arcom, 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).

18.7 The Client shall have the right to request (by e-mail) from Arcom:

(a) a copy of the information about the Client retained by Arcom and the right to request that Arcom correct any incorrect information; and

(b) that Arcom does not disclose any personal information about the Client for the purpose of direct marketing.

18.8 Arcom 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.

18.9 The Client can make a privacy complaint by contacting Arcom via e-mail. Arcom 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.

19. Unpaid Seller’s Rights

19.1 Where the Client has left any item with Arcom for repair, modification, exchange or for Arcom to perform any other service in relation to the item and Arcom has not received or been tendered the whole of any monies owing to it by the Client, Arcom shall have, until all monies owing to Arcom 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.

19.2 The lien of Arcom shall continue despite the commencement of proceedings, or judgment for any monies owing to Arcom having been obtained against the Client.

20. Equipment Hire

20.1 Equipment shall at all times remain the property of Arcom and is returnable on demand by Arcom. In the event that Equipment is not returned to Arcom in the condition in which it was delivered Arcom retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all Arcom shall have right to charge the Client the full cost of replacing the Equipment.

20.2 The Client shall;

(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.

(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.

(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Arcom to the Client.

20.3 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self-insure, Arcom’s interest in the Equipment and agrees to indemnify Arcom against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

21. Service of Notices

21.1 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.

21.2 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.

22. Building and Construction Industry Security of Payments Act 2009

22.1 At Arcom’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.

22.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2009 of Tasmania, except to the extent permitted by the Act where applicable.

23. Building and Construction Industry Security of Payment Act 2002

23.1 At Arcom’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.

23.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

24. Dispute Resolution

24.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:

(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

25. General

25.1 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.

25.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Tasmania, the state in which Arcom has its principal place of business, and are subject to the jurisdiction of the Hobart Courts in Tasmania.

25.3 Subject to clause 13 Arcom 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 Arcom of these terms and conditions (alternatively Arcom’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

25.4 Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party.

25.5 The Client agrees that Arcom 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 Arcom to provide Goods to the Client.

25.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

25.7 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.

1. Definitions

1.1 “Arcom” means Arcom Group Pty Ltd ATF Sunshield Unit Trust T/A Arcom Group Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Arcom Group Pty Ltd ATF Sunshield Unit Trust T/A Arcom Group Pty Ltd.

1.2 “Client” means the person/s buying the Goods (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3 “Goods” means all Goods or Services supplied by Arcom to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4 “Equipment” means all Equipment including any accessories supplied on hire by Arcom to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Arcom to the Client.

1.5 “Price” means the Price payable (plus any GST where applicable) for the Goods and/or Equipment hire as agreed between Arcom and the Client in accordance with clause 5 below.

1.6 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999”.

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.

2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Arcom.

3. Electronic Transactions Act 2000

3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 7 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

4. Change in Control

4.1 The Client shall give Arcom 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 Arcom as a result of the Client’s failure to comply with this clause.

5. Price and Payment

5.1 At Arcom’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by Arcom to the Client; or

(b) the Price as at the date of delivery of the Goods/Equipment according to Arcom’s current price list; or

(c) Arcom’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2 Arcom reserves the right to change the Price in the event of a variation to Arcom’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to fluctuations in the currency exchange rate, or as a result of increases to Arcom in the cost of materials and labour) will be charged for on the basis of Arcom’s quotation and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by Arcom within ten (10) working days. Failure to do so will entitle Arcom 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.

5.3 At Arcom’s sole discretion a non-refundable deposit may be required.

5.4 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by Arcom, which may be:

(a) on delivery of the Goods/Equipment;

(b) before delivery of the Goods/Equipment;

(c) by way of instalments/progress payments in accordance with Arcom’s payment schedule;

(d) payment for approved Clients shall be due fourteen (14) days following the date of the invoice.

5.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated, then payment shall be due seven (7) days following the date of the invoice.

5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction) only Visa and MasterCard will be accepted, or by any other method as agreed to between the Client and Arcom.

5.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Arcom nor to withhold payment of any invoice because part of that invoice is in dispute.

5.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Arcom an amount equal to any GST Arcom must pay for any supply by Arcom under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

6. Delivery of Goods/Equipment

6.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:

(a) the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at Arcom’s address; or

(b) Arcom (or Arcom’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.

6.2 At Arcom’s sole discretion the costs of delivery are:

(a) included in the Price; or

(b) in addition to the Price; or

 (c) for the Client’s account.

6.3 Arcom may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.4 Any time specified by Arcom for delivery of the Goods/Equipment is an estimate only and Arcom will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods/Equipment to be delivered at the time and place as was arranged between both parties. In the event that Arcom is unable to supply the Goods/Equipment as agreed solely due to any action or inaction of the Client, then Arcom shall be entitled to charge a reasonable fee for redelivery and/or storage.

7. Risk

7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Arcom is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Arcom is sufficient evidence of Arcom’s rights to receive the insurance proceeds without the need for any person dealing with Arcom to make further enquiries.

7.3 If the Client requests Arcom to leave Goods outside Arcom’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.

7.4 The Client acknowledges and agrees that some Goods may take up to thirty (30) days to completely dry. Arcom shall not be held liable for any damage caused to the Goods during this period. In the event the Client has any concerns regarding this, the Client needs to contact Arcom as soon as possible.

7.5 All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.

7.6 Whilst every care is taken by Arcom to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. Arcom shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.

7.7 Arcom is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by Arcom to match virtual colours with physical colours, Arcom will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra including return freight, the charge will be contra against final invoice.

7.8 Arcom shall not be held liable for inks, films or laminations wearing off through general wear and tear, or fading due to exposure to weather conditions.

8. Thermal Stress Glass Breakages

8.1 The Client acknowledges and agrees that installation of glass film or selected window furnishings can increase the risk of glass breakage due to the additional thermal stresses. This is especially evident in applications using older window frames, locations where building movement can/has occurred, pre-tinted glass, IGUs (double glazing), laminated glass, angled/ranked glass and windows with shading, or where additional factors such as ambient temperature and weather patterns, and the conditions of the glass edge are apparent. Arcom recommends applying clear film to all glass to significantly mitigate this risk.

8.2 The Client accepts responsibility for any consequential action, loss, failure or damage occurring as a result of any installation by Arcom, including glass breakages due to thermal stresses. At all times Arcom will take all due care to ensure the right window film is used to mitigate glass breakage risks; however, Arcom cannot accept liability for thermal stress glass breakages following window film installation if Arcom was not responsible for the quality of the original glazing installation.

8.3 The Client acknowledges and agrees that the application of tinted solar control film to pre-tinted glass increases the risk of glass breakage due to thermal stresses.

8.4 The films provided for selection are selected to reduce the risk of thermal stress glass breakages, whilst aiming to maximise the benefits required. Additional factors that affect this selection are ambient temperature and weather patterns, the condition of the glass edge following window installation and building movement. These factors are beyond Arcoms control and is the Clients responsibility to seriously consider this when selecting films.

9. Access

9.1 The Client shall ensure that Arcom has clear and free access to the work site at all times to enable them to undertake the Services. Arcom shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Arcom.

10. Title To Goods

10.1 Arcom and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid Arcom all amounts owing to Arcom; and

(b) the Client has met all of its other obligations to Arcom.

10.2 Receipt by Arcom 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.

10.3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 10.1:

(a) the Client is only a bailee of the Goods and must return the Goods to Arcom on request.

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Arcom and must pay to Arcom the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Arcom and must pay or deliver the proceeds to Arcom on demand.

 (d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Arcom and must sell, dispose of or return the resulting product to Arcom as it so directs.

(e) the Client irrevocably authorises Arcom to enter any premises where Arcom believes the Goods are kept and recover possession of the Goods.

(f) Arcom may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Arcom.

(h) Arcom may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

11. Personal Property Securities Act 2009 (“PPSA”)

11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

11.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment and/or collateral (account) – being a monetary obligation of the Client to Arcom for Services – that have previously been supplied and that will be supplied in the future by Arcom to the Client.

11.3 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 Arcom 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 11.2(a)(i) or 11.2(a)(ii);

(b) indemnify, and upon demand reimburse, Arcom for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of Arcom;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment and/or collateral (account) in favour of a third party without the prior written consent of Arcom;

(e) immediately advise Arcom of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.

11.4 Arcom 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.

11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

11.7 Unless otherwise agreed to in writing by Arcom, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

11.8 The Client must unconditionally ratify any actions taken by Arcom under clauses 11.2 to 11.5.

11.9 Subject to any express provisions to the contrary (including those contained in this clause 11) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

12. Security and Charge

12.1 In consideration of Arcom agreeing to supply the Goods/Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

12.2 The Client indemnifies Arcom from and against all Arcom’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Arcom’s rights under this clause.

12.3 The Client irrevocably appoints Arcom and each director of Arcom as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.

13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

13.1 The Client must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify Arcom in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow Arcom to inspect the Goods/Equipment.

13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

13.3 Arcom acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Arcom makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. Arcom’s liability in respect of these warranties is limited to the fullest extent permitted by law.

13.5 If the Client is a consumer within the meaning of the CCA, Arcom’s liability is limited to the extent permitted by section 64A of Schedule 2.

13.6 If Arcom is required to replace the Goods under this clause or the CCA, but is unable to do so, Arcom may refund any money the Client has paid for the Goods.

13.7 If the Client is not a consumer within the meaning of the CCA, Arcom’s liability for any defect or damage in the Goods is:

(a) limited to the value of any express warranty or warranty card provided to the Client by Arcom at Arcom’s sole discretion;

 (b) limited to any warranty to which Arcom is entitled, if Arcom did not manufacture the Goods;

(c) otherwise negated absolutely.

13.8 Subject to this clause 13, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 13.1; and

(b) Arcom has agreed that the Goods are defective; and

(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and

(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, Arcom shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Client failing to properly maintain or store any Goods/Equipment;

(b) the Client using the Goods/Equipment for any purpose other than that for which they were designed;

(c) the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Client failing to follow any instructions or guidelines provided by Arcom;

(e) fair wear and tear, any accident, or act of God.

13.10 Arcom may in its absolute discretion accept non-defective Goods for return in which case Arcom may require the Client to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.

13.11 Notwithstanding anything contained in this clause if Arcom is required by a law to accept a return then Arcom will only accept a return on the conditions imposed by that law.

13.12 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.

14. Intellectual Property

14.1 Where Arcom has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of Arcom. Under no circumstances may such designs, drawings and documents be used without the express written approval of Arcom.

14.2 The Client warrants that all designs, specifications or instructions given to Arcom will not cause Arcom to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Arcom against any action taken by a third party against Arcom in respect of any such infringement.

14.3 The Client agrees that Arcom may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Arcom has created for the Client.

15. Default and Consequences of Default

15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Arcom’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

15.2 If the Client owes Arcom any money the Client shall indemnify Arcom from and against all costs and disbursements incurred by Arcom in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Arcom’s contract default fee, and bank dishonour fees).

15.3 Further to any other rights or remedies Arcom may have under this contract, if a Client has made payment to Arcom, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Arcom under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.

15.4 Without prejudice to Arcom’s other remedies at law Arcom shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Arcom shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Arcom becomes overdue, or in Arcom’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 Arcom;

(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

16. Compliance with Laws

16.1 The Client and Arcom shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.

16.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.

16.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

17. Cancellation

17.1 Without prejudice to any other remedies Arcom may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Arcom may suspend or terminate the supply of Goods/Equipment to the Client. Arcom will not be liable to the Client for any loss or damage the Client suffers because Arcom has exercised its rights under this clause.

17.2 Arcom may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice Arcom shall repay to the Client any money paid by the Client for the Goods/Equipment. Arcom shall not be liable for any loss or damage whatsoever arising from such cancellation.

17.3 In the event that the Client cancels delivery of the Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by Arcom as a direct result of the cancellation (including, but not limited to, any loss of profits).

17.4 Cancellation of orders for Goods/Equipment made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

18. Privacy Act 1988

18.1 The Client agrees for Arcom 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 Arcom.

18.2 The Client agrees that Arcom 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.

18.3 The Client consents to Arcom being given a consumer credit report to collect overdue payment on commercial credit.

18.4 The Client agrees that personal credit information provided may be used and retained by Arcom for the following purposes (and for other agreed purposes or required by):

(a) the provision of Goods/Equipment; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d) enabling the collection of amounts outstanding in relation to the Goods/Equipment.

18.5 Arcom 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.

18.6 The information given to the CRB may include:

(a) personal information as outlined in 18.1 above;

(b) name of the credit provider and that Arcom 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 Arcom has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of Arcom, 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).

18.7 The Client shall have the right to request (by e-mail) from Arcom:

(a) a copy of the information about the Client retained by Arcom and the right to request that Arcom correct any incorrect information; and

(b) that Arcom does not disclose any personal information about the Client for the purpose of direct marketing.

18.8 Arcom 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.

18.9 The Client can make a privacy complaint by contacting Arcom via e-mail. Arcom 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.

19. Unpaid Seller’s Rights

19.1 Where the Client has left any item with Arcom for repair, modification, exchange or for Arcom to perform any other service in relation to the item and Arcom has not received or been tendered the whole of any monies owing to it by the Client, Arcom shall have, until all monies owing to Arcom 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.

19.2 The lien of Arcom shall continue despite the commencement of proceedings, or judgment for any monies owing to Arcom having been obtained against the Client.

20. Equipment Hire

20.1 Equipment shall at all times remain the property of Arcom and is returnable on demand by Arcom. In the event that Equipment is not returned to Arcom in the condition in which it was delivered Arcom retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all Arcom shall have right to charge the Client the full cost of replacing the Equipment.

20.2 The Client shall;

(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.

(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.

(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Arcom to the Client.

20.3 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self-insure, Arcom’s interest in the Equipment and agrees to indemnify Arcom against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

21. Service of Notices

21.1 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.

21.2 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.

22. Building and Construction Industry Security of Payments Act 2009

22.1 At Arcom’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.

22.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2009 of Tasmania, except to the extent permitted by the Act where applicable.

23. Building and Construction Industry Security of Payment Act 2002

23.1 At Arcom’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.

23.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

24. Dispute Resolution

24.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:

(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

25. General

25.1 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.

25.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Tasmania, the state in which Arcom has its principal place of business, and are subject to the jurisdiction of the Hobart Courts in Tasmania.

25.3 Subject to clause 13 Arcom 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 Arcom of these terms and conditions (alternatively Arcom’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

25.4 Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party.

25.5 The Client agrees that Arcom 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 Arcom to provide Goods to the Client.

25.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

25.7 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.