TERMS AND CONDITIONS OF TRADE
- In these Terms and Conditions:
- ACL means the Australian Consumer Law under the Competition and Consumer Act 2010 (C’th).
- Agreement means an agreement entered into between Complete Wiring and the Customer (and, where relevant, each Guarantor) to which these Terms and Conditions apply. For the avoidance of doubt, each time Complete Wiring accepts an Order, a separate Agreement is formed incorporating the Order and these Terms and Conditions. Any other terms or conditions (e.g. appearing on the Customer’s Orders, website or stationery) do not form part of an Agreement unless expressly agreed in writing to the contrary.
- Application for Credit means a form of application for Credit completed by the Customer;
- Collateral, Financing Statement, Financing Change Statement, Security Agreement and Security Interest have the same meanings as in the PPSA;
- Complete Wiring means Complete Wiring Harnesses Pty Ltd ABN 51 162 599 411, trading as Complete Wiring.
- Construction Work has the same meaning as in the Building and Construction Industry Payments Act 2004 (Qld).
- Credit means the Customer’s deferred debt to Complete Wiring for the purchase of Goods and Services in connection with a business carried on by the Customer.
- Customer means the purchaser of Goods and Services from Complete Wiring as specified in any invoice, Application for Credit, Order or other document, and if there is more than one purchaser, is a reference to each purchaser jointly and severally.
- Delivery means:
- in the case of Goods, delivery by Complete Wiring to the Customer at the location or place specified by the Customer in an Order; or
- in the case of Services, the date of completion of those services; and
includes such other place or date (as the case may be) as the parties may agree or as Complete Wiring may, without Obligation and at its sole discretion, consider reasonable in the circumstances.
- Descriptive Matter means and includes without limitation, Specifications, descriptions, pictures, drawings, diagrams, particulars of varieties/weights/dimensions or any other form of description or measurement submitted with or prior to any offer or invitation by Complete Wiring or contained in its website, catalogues, price lists or advertising matter.
- Dispatched means Goods have been removed from the premises of Complete Wiring for the purpose of Delivery to the Customer, or any third party, pursuant to an Order and Dispatch has a corresponding meaning.
- Due Date means, where Complete Wiring has agreed to provide Credit to the Customer, the date 30 days after the date of the invoice issued by Complete Wiring for the Goods and Services, or such other date or period as the parties may expressly agree in writing;
- Goods means all products sold or supplied (whether gratuitously or not) by Complete Wiring to the Customer as specified in the Quote or Order or as otherwise agreed between Complete Wiring and the Customer.
- Grantor refers to the Customer and has the same meaning as in the PPSA.
- Guarantor means the person or persons, if any, named in an Application for Credit who have agreed to guarantee the performance by the Customer of any of its Obligations to Complete Wiring.
- GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (C’th).
- Intellectual Property means any intellectual or industrial property, including (without limitation):
- any patent, trademark or service mark, copyright, registered design, trade secret or confidential information; or
- any licence or other Right to use or to grant the use of any of the above or to be the registered proprietor or user of any of them;
- Interest Rate means the rate which is 3% per annum above the rate charged by Complete Wiring’s bank from time to time on unsecured overdrafts of $100,000 or more, conclusive evidence of which will be confirmation in writing by a manager of Complete Wiring’s bank.
- Non-Excludable Condition means any condition, warranty or guarantee provided or implied by any state, territory or commonwealth law, including but not limited to the statutory consumer guarantees described in the ACL, and the provisions of any state or territory legislation which cannot be lawfully excluded.
- Obligation means any express or implied legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability.
- Order means any purchase order or other request by the Customer for the supply of Goods and Services by Complete Wiring, whether that supply is to the Customer or to any third party and whether the request amounts to an offer or an invitation to treat from the Customer, or is constituted by the acceptance by the Customer of a Quote provided by Complete Wiring.
- PMSI means a Purchase Money Security Interest within the meaning of section 14 of the PPSA.
- PPSA means the Personal Property Securities Act 2009 (C’th).
- PPSR means the Personal Property Securities Register established pursuant to the PPSA.
- Price means the price payable for Goods and Services as agreed between Complete Wiring and the Customer in accordance with clause 6 of these Terms and Conditions.
- Quote means any quotation form or other document provided by Complete Wiring to the Customer detailing the Goods and Services to be provided.
- Right includes any legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action.
- Services means the services to be performed (whether gratuitously or not) by Complete Wiring as specified in the Quote or Order or as otherwise agreed between Complete Wiring and the Customer.
- Specifications means any written specification relating to Goods that details the quantities, processes and/or conditions required for the correct use of the Goods.
- Terms and Conditions means these Terms and Conditions and includes, where the context requires, any additional Terms and Conditions agreed to by Complete Wiring in writing from time to time.
- where the context requires, a reference to “Goods and Services” will mean and include a reference to “Goods” or “Services” or “Goods and/or Services”.
- singular includes plural and vice versa and any gender includes every gender.
- a reference to a person includes corporations, trusts, associations, partnerships, a government authority and other legal entities, and where necessary, include successor bodies.
- references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes.
- headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of these Terms and Conditions.
- a reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns.
- nothing in these Terms and Conditions may be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, Right or remedy implied by law (including the ACL and the PPSA) and which by law cannot be excluded, restricted or modified.
Terms of Sale
- Goods and Services sold or supplied by Complete Wiring are sold or supplied strictly on these Terms and Conditions, which can only be waived or varied in writing by Complete Wiring. Unless an Order expressly provides otherwise, these Terms and Conditions will prevail over all conditions expressed or implied in any Order placed by the Customer (or in any standard terms and conditions of the Customer) to the extent of any inconsistency.
- The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms and Conditions if the Customer places an Order for, or accepts Delivery of, Goods and Services.
- Goods and Services to be sold or supplied by Complete Wiring to the Customer are as described on the Order accepted by Complete Wiring and the description of Goods and Services on the Order as accepted (modified only as may be agreed in writing) will prevail over all other descriptions including any prior enquiry by the Customer. Quotes issued by Complete Wiring will not be construed as an offer or obligation to supply in accordance with the Quote. Complete Wiring reserves the right to accept or reject, at its discretion, any offer to purchase Goods or Services received by it.
- Complete Wiring reserves the right to update from time to time the Terms and Conditions which will apply to an Agreement. If Complete Wiring makes a change to these Terms and Conditions, that change will take effect from the date on which Complete Wiring provides reasonable notification to the Customer of such change. The Customer confirms that notification on Complete Wiring’s website of the updated Terms and Conditions or reference to the updated Terms and Conditions in any material provided to the Customer will be reasonable steps taken by Complete Wiring to inform the Customer. The Customer will be taken to have acknowledged and accepted such change if the Customer makes a subsequent request for Complete Wiring to provide Goods and Services to the Customer. Complete Wiring declares and the Customer acknowledges that the most up-to-date version of the Terms and Conditions which form part of the Agreement can be found on Complete Wiring’s website, currently located at completewiring.com.au/termsoftrade .
Price and Payment
- At Complete Wiring’s sole discretion, the Price shall be:
- as indicated on any invoice provided by Complete Wiring to the Customer; or
- Complete Wiring’s quoted prices (subject to clause 7) which will be valid for the period stated in the Quote or otherwise for a period of fourteen (14) days, unless earlier withdrawn. Complete Wiring reserves the Right to refuse any Order based on any Quote within 14 days after the date of receipt of the Order.
- Complete Wiring reserves the Right to change the Price if a variation to Complete Wiring’s Quote is requested or if there is a change in the scope, timing or order of the Goods and Services. Complete Wiring will be entitled to payment of an additional amount which is reasonable in the circumstances. In particular, but without limitation, if Goods are returned as defective but are not in fact defective after testing, then Complete Wiring is entitled to charge the Customer for all relevant additional freight and handling costs and for the costs of Complete Wiring’s labour and other expenses incurred in investigating the alleged defects in the Goods. Any additional Goods and Services required by the Customer will be charged to the Customer on the basis of a further Quote from Complete Wiring.
- At Complete Wiring’s sole discretion, a non-refundable deposit may be required prior to acceptance of an Order.
- Time for payment for Goods and Services will be of the essence and unless otherwise agreed by Complete Wiring in response to any Application for Credit, the Price must be paid by the Customer on or before Delivery of the Goods and Services or by such other date determined by Complete Wiring in its sole discretion. If Complete Wiring has agreed to provide Credit, then payment must be made by cleared funds on the Due Date or otherwise in accordance with the terms specified on the Application for Credit.
- Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (plus the maximum credit card bank fee, merchant fee and administration surcharge permitted by law), or by any other method as agreed in writing between the Customer and Complete Wiring.
- Should the Customer not pay for any Goods or Services supplied by Complete Wiring by the due date for payment, then without prejudice to any of its other rights and remedies Complete Wiring will be entitled to recover from the Customer:
- an administration fee equivalent to 10% of the amount payable;
- any collection costs incurred in accordance with clause 12; and
- interest calculated at the Interest Rate for the period from the due date for payment until the date upon which payment is ultimately received by Complete Wiring.
- The Customer will pay Complete Wiring’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including collection costs, debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Customer to Complete Wiring irrespective of whether pursuit of the recovery action, claim or remedy proceeds to judgment, discontinuance or other formal conclusion.
- Should Complete Wiring agree to provide Credit to the Customer, the Customer acknowledges and agrees that:
- any Credit to be provided to the Customer by Complete Wiring is provided strictly in accordance with these Terms and Conditions and any Credit Application made by the Customer and accepted by Complete Wiring;
- Credit is obtained wholly or predominantly for commercial purposes;
- Complete Wiring reserves the right to withdraw Credit at any time, whether the Customer is in default under the terms of an Agreement or not;
- upon withdrawal of Credit by Complete Wiring, with or without notice, all debts and liabilities to Complete Wiring incurred by the Customer become immediately due and payable;
- the Customer must comply with any request by Complete Wiring to provide further information for the purpose of assessing the Customer’s creditworthiness from time to time, including providing an updated Credit Application;
- each Agreement will be considered a new advance of money or credit within the meaning of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 which introduces sections 415D(9), 434J(8) and 451E(8) into the Corporations Act 2001;
- the Customer authorises Complete Wiring to collect, retain, use, record, and disclose credit information about the Customer for the purpose of assessing and reporting matters related to the Customer’s credit-worthiness.
- If the Customer breaches the payments terms, Complete Wiring may, as its discretion, terminate the Agreement and report the breach to any credit provider or credit reference organisation. The Customer understands that this may affect its credit rating.
- Unless otherwise stated the Price as charged excludes GST. The Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
- The cost of any permits, licence fees and/or toll charges incurred by Complete Wiring, and any special packing and packing materials used in relation to Goods and Services, will be charged to the Customer despite that such cost may have been omitted from any Quote.
Descriptive Matter, etc
- The descriptions, illustrations and performances contained in any Descriptive Matter do not form part of the Agreement for sale or supply of Goods and Services or of the description applied to any Goods and Services. The Customer acknowledges that it has not relied upon any descriptions, illustrations and performances contained in any Descriptive Matter as an inducement to entering into any Agreement or other contract for sale or supply with Complete Wiring. The Customer must determine whether the Goods and Services requested by the Customer and supplied by Complete Wiring are adequate for the purpose intended by the Customer. Complete Wiring is not capable of determining all of the Customer’s objectives in relation to the Goods and Services and relies on the Customer to satisfy itself as to whether the Goods and Services are adequate to achieve the Customer’s purpose and objectives.
- Any performance standards, figures or representations as to quality given by Complete Wiring are estimates only. Complete Wiring is under no liability for damages for failure of any Goods and Services to attain such quality standards, figures or quality unless specifically warranted in writing. Any such warranties are subject to recognised tolerances applicable to such standards, figures or quality.
- Complete Wiring will not be liable for any loss, damage or delay occasioned to the Customer, its customers or any other person, arising from:
- late Delivery or non-Delivery, or late utilisation of any Goods and Services; or
- any actions or Obligations conducted or incurred by the Customer in reliance on any expected Delivery date.
- The Customer is responsible for making arrangements to receive Goods and Services Delivered in accordance with any Order failing which Complete Wiring may, without Obligation, Deliver in any other manner it considers reasonable in the circumstances.
- If the Customer fails to accept Delivery of Goods and Services, the Customer will be liable for loss of or damage to the Goods and Services and for any costs or damages incurred by Complete Wiring on account of such failure to accept Delivery.
- The Customer waives any claim for shortage of any Goods Delivered if a claim in respect of short Delivery has not been lodged with Complete Wiring within 48 hours from the date and time of Delivery.
- Should the Customer fail to provide sufficient instructions to enable Delivery of Goods to the Customer, Complete Wiring may, without Obligation, arrange for suitable storage and insurance until such Goods are Dispatched. Charges incurred for storage, insurance, transport and other incidental costs may be on-charged by Complete Wiring to the Customer.
- Delivery of Goods and Services to a third party nominated by the Customer is deemed to be Delivery to the Customer.
- Complete Wiring may deliver Goods and Services in separate instalments. Each separate instalment may be invoiced and paid in accordance with these Terms and Conditions.
- The risk in, and all attached liability for damage to, Goods passes to the Customer at the point of Dispatch of the Goods even if Complete Wiring Delivers Goods itself or Complete Wiring’s premises are the intended Delivery location. The Customer must make its own arrangements for insurance of the Goods on or before Dispatch.
- If any Goods are damaged or destroyed following Dispatch but prior to ownership passing to the Customer, Complete Wiring is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions by Complete Wiring will be sufficient evidence of Complete Wiring’s Right to receive the insurance proceeds without the need for any person dealing with Complete Wiring to make further enquiries.
Loss or damage in transit
- Complete Wiring is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not Complete Wiring is legally responsible for the person who caused or contributed to that loss or damage).
- Complete Wiring will endeavour to provide the Customer with such assistance as may be reasonable to press claims on carriers as long as the Customer:
- has notified Complete Wiring and the carriers in writing immediately after loss or damage is discovered on receipt of Goods; and
- lodges a claim for compensation upon the carrier within three (3) days of the date of receipt of Goods.
Defects, Warranties and Returns
- The Customer must inspect Goods and Services on Delivery and must immediately upon Delivery notify Complete Wiring in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description, Order or Quote or other grounds for rejection of the Goods and Services. Upon such notification the Customer must:
- specify all grounds relied upon by it in its rejection of the Goods and Services;
- provide good quality evidence of the grounds for its rejection of the Goods and Services; and
- allow Complete Wiring the opportunity to inspect the Goods and Services.
- Under applicable State, Territory and Commonwealth law (including, without limitation, the ACL), certain Non-Excludable Conditions may be implied into these Terms and Conditions. Nothing in these Terms and Conditions purports to modify or exclude the Non-Excludable Conditions.
- Except as expressly set out in these Terms and Conditions or in respect of the Non-Excluded Conditions, Complete Wiring makes no warranties or other representations under these Terms and Conditions or the Agreement generally including, without limitation, as to the quality, merchantability or suitability of any Goods and Services. Complete Wiring’s liability in respect of any such warranties is limited to the fullest extent permitted by law.
- If the Customer is a consumer within the meaning of the ACL, Complete Wiring’s liability in relation to Goods and Services which are not used for personal, domestic or household purposes is limited to:
- either replacing or repairing Goods or reimbursing the Customer for the repair or replacement of the Goods (at the election of Complete Wiring);
- either re-supplying Services or reimbursing the Customer for paying someone else to supply the Services (at the election of Complete Wiring);
or is otherwise limited to the extent permitted by section 64A of Schedule 2 of the ACL or to similar remedies under any applicable state or territory fair trading legislation.
- If the Customer is not a consumer within the meaning of the ACL, Complete Wiring’s liability for any defect or damage in any Goods and Services is:
- limited to the value of any express warranty provided to the Customer by Complete Wiring, at Complete Wiring’s sole discretion;
- limited to the extent of the benefit of any warranty to which Complete Wiring is entitled; or
- otherwise negated absolutely.
- Subject to these Terms and Conditions, returns will only be accepted provided that:
- the Customer has complied with the provisions of clause 30;
- Complete Wiring has agreed that the Goods and Services are defective;
- the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
- the Goods are returned in as close a condition to that in which they were Delivered as is possible.
- Despite clauses 30 to 35 but subject to the ACL, Complete Wiring will not be liable for any defect or damage which may be caused or partly caused by or may arise as a result of:
- the Customer failing to properly maintain or store any Goods;
- the Customer using Goods for any purpose other than that for which they were obviously suited;
- the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a prudent operator or user;
- any failure by the Customer to follow any instructions or guidelines provided by Complete Wiring; or
- fair wear and tear, any accident, or act of God.
- In the case of used or second hand Goods, unless the Customer is a consumer under the ACL the Customer acknowledges that:
- it has had full opportunity to inspect the Goods prior to delivery and accepts them with all faults;
- to the extent permitted by law no warranty is given by Complete Wiring as to the quality or suitability of the Goods for any purpose and any implied warranty, statutory or otherwise, is expressly excluded;
- Complete Wiring has agreed to provide the Customer with the Goods, and has calculated the Price of the Goods, in reliance on this clause 37.
- Complete Wiring may in its absolute discretion accept non-defective Goods for return in which case Complete Wiring may require the Customer to pay handling fees not exceeding twenty-five percent (25%) of the invoiced value of the returned Goods, plus any freight costs.
- Despite anything contained in these Terms and Conditions, if Complete Wiring is required by a law to accept a return then Complete Wiring will only accept a return on, and to the extent only, of the conditions imposed by that law.
- Except as provided in these Terms and Conditions and to the maximum extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of Goods and Services for any purpose or as to design, application of Goods and Services, materials or workmanship or otherwise are expressly excluded.
- Complete Wiring is not liable for any loss or damage, loss of income, loss of profits, loss of markets, loss of reputation, loss of buyers, loss of use, loss of opportunity, loss of business, loss of reputation or goodwill, loss of value or use of intellectual property or other proprietary Rights even if Complete Wiring had knowledge that such loss or damage might arise or for any other indirect, incidental, special or consequential loss or damage howsoever arising out of the manufacture, sale or supply of the Goods and Services or out of the Customer’s relationship with Complete Wiring connected to the Agreement including, without limitation, Complete Wiring’s breach of contract, negligence, wilful act or omission or other default including to the extent that such conduct or default is outside the “four corners” of the Agreement, or deviates from it or defeats its main object.
Rights in relation to Goods
- While Goods remain the property of Complete Wiring (or of any other supplier on behalf of whom Complete Wiring is selling the Goods):
- the Customer has no Right or claim to any interest in Goods to secure any liquidated or unliquidated debt or Obligation Complete Wiring owes to the Customer;
- the Customer cannot claim any charge or lien over any Goods;
- the Customer will not create any absolute or defeasible interest in Goods in relation to any third party except as may be authorised by Complete Wiring.
- Where the Customer is in actual or constructive possession of Goods:
- the Customer will not deliver the Goods nor any document of title to the Goods to any person except as directed by Complete Wiring; and
- it is in possession of the Goods as a bailee of those Goods and owes Complete Wiring the duties and liabilities of a bailee.
- Complete Wiring and the Customer agree that:
- the property in Goods does not pass to the Customer until Complete Wiring has been paid in full for Goods under all individual agreements for the sale or supply of Goods between Complete Wiring and the Customer;
- the Customer is a bailee of Goods until such time as property in the Goods passes to the Customer and that this bailment continues in relation to all Goods until the price of those Goods has been paid in full;
- pending payment in full for any Goods, the Customer:
- must not supply any Goods to any person outside its ordinary or usual course of business;
- must not allow any person to have or acquire any Security Interest in any Goods.
- Despite clause 44(c), if the Customer does supply any Goods to any person before all moneys payable by the Customer have been paid to Complete Wiring, the Customer agrees that:
- it holds the proceeds of re-supply of those Goods on trust for and as agent for Complete Wiring immediately when they are receivable or are received;
- it must either pay the amount of the proceeds of re-supply to Complete Wiring immediately when they are received or pay those proceeds into an account with a bank, financial institution or deposit-taking institution as trustee for Complete Wiring;
- if the Customer fails to pay for any Goods and Services within the period of Credit (if any) extended by Complete Wiring to the Customer, Complete Wiring may at any time and with reasonable force enter any site owned, possessed, occupied or controlled by the Customer and recover possession of the Goods and the Customer agrees that Complete Wiring has an irrevocable licence to do so.
- Complete Wiring may recover possession of any Goods in transit whether or not Delivery has occurred.
- Complete Wiring may commence proceedings to recover the Price of Goods sold notwithstanding that property in those Goods has not passed to the Customer.
- The Customer acknowledges and agrees that:
- unless the Customer provides express prior notification to Complete Wiring to the contrary, all Goods supplied by Complete Wiring to the Customer are acquired in the course or furtherance of an enterprise by the Customer, and are commercial property as defined in s.10 of the PPSA.
- each Agreement with Complete Wiring constitutes a Security Agreement in writing and a PMSI for the purposes of the PPSA which will subsist in all Goods that have been supplied, and that will be supplied, by Complete Wiring to the Customer until those Goods have been paid for in full.
- The Customer undertakes to:
- promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Complete Wiring may reasonably require to:
- register a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPSR;
- register any other document required to be registered by the PPSA; or
- correct a defect in a statement or document referred to in clause 49(a)(i)or 49(a)(ii);
- indemnify, and upon demand reimburse, Complete Wiring for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPSR or releasing any Goods charged thereby;
- not register a Financing Change Statement in respect of a Security Interest without the prior written consent of Complete Wiring;
- not grant a Security Interest nor register, nor permit to be registered, a Financing Statement or a Financing Change Statement in relation to any Goods in favour of a third party without the prior written consent of Complete Wiring;
- immediately advise Complete Wiring of any material change in its business practices of on-supply of Goods which would result in a change in the nature of proceeds derived from such supply.
- 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 Complete Wiring may reasonably require to:
- Complete Wiring and the Customer agree that sections 96 and 125 of the PPSA do not apply to the Security Agreement created by an Agreement.
- The Customer waives its Rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
- The Customer waives its Rights as a Grantor and/or a debtor under sections 142 and 143 of the PPSA.
- Unless otherwise agreed in writing by Complete Wiring, the Customer waives its Right to receive a verification statement or other notice in accordance with section 157 of the PPSA.
- The Customer must unconditionally ratify any actions taken by Complete Wiring under clauses 49 to 53.
- The Customer acknowledges and agrees that if:
- title to Collateral has not passed to the Customer; and
- where Complete Wiring has seized such Collateral as contemplated by Division 2 of Part 4.3 of the PPSA (or has seized such Collateral in another manner);
- to the extent permissible under the PPSA, nothing in s.125 or in s.134(1) or in other sections of the PPSA is to be taken to prevent Complete Wiring from retaining such Collateral, without any obligation to take any further step in relation to disposal of the Collateral or any obligation to give notice to the Customer in connection with such Collateral. It is intended that if this clause is deemed to be unenforceable or illegal, then it be severed from these Terms and Conditions without affecting the validity of other provisions of these Terms and Conditions.
- Subject to any express and permitted provisions to the contrary, nothing in these Terms and Conditions is intended to have the effect of contracting out of any other provisions of the PPSA.
Security and Charge
- In consideration of Complete Wiring agreeing to grant Credit (if any) and/or to supply the Goods and Services, the Customer charges (and grants a Security Interest over) all of its Rights, title and interest (whether joint or several) in any land, realty or other assets owned by the Customer either now or in the future and capable of being charged, to secure the performance by the Customer of its Obligations under an Agreement (including, without limitation, the payment of all moneys owed by the Customer to Complete Wiring from time to time).
- The Customer indemnifies Complete Wiring from and against all of Complete Wiring’s costs and disbursements, including legal costs on a full indemnity basis, incurred in exercising Complete Wiring’s Rights under clause 57.
- The Customer irrevocably appoints Complete Wiring and each director of Complete Wiring as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of clause 57 including, without limitation, signing any document on the Customer’s behalf.
- Complete Wiring may cancel an Agreement or any Delivery of Goods and Services at any time before the Goods and Services are Delivered by giving written notice to the Customer. On giving such notice Complete Wiring will repay to the Customer any money paid by the Customer for Goods and Services not yet Delivered (subject to any Right of set-off against any money at that time owing by the Customer to Complete Wiring). Complete Wiring will not be liable for any loss or damage whatsoever arising from such cancellation.
- Cancellation of Orders for Goods and Services made or provided to the Customer’s Specifications will not be accepted once production of those Goods and Services has commenced.
- Cancellation of other Orders by the Customer will not be accepted once Dispatch has commenced.
- In the event that the Customer cancels Delivery of any Goods and Services the Customer will be liable for any and all loss or damage incurred (whether direct or indirect) by Complete Wiring as a direct result of the cancellation (including, without limitation, any loss of profits).
- In consideration of Complete Wiring, at the request of the Customer and of the Guarantor, granting Credit to the Customer and/or entering into an Agreement the Guarantor unconditionally (and jointly and severally where there is more than one Guarantor):
(a) guarantees the Customer’s Obligations to Complete Wiring pursuant to the Agreement; and
(b) indemnifies Complete Wiring against any loss, damage or liability Complete Wiring incurs arising from or connected with the Customer’s Obligations to Complete Wiring pursuant to the Agreement.
- Each of the Guarantor’s Obligations arising from this guarantee and the Agreement:
(a) is a principal Obligation and will not be treated as ancillary or collateral to any other Right or Obligation however created or arising;
(b) may be enforced against the Guarantor without Complete Wiring first being required to exhaust any remedy it may have against the Customer or to enforce any security it may hold with respect to the Customer’s Obligations;
(c) is a continuing guarantee and indemnity for the whole of the Customer’s Obligations from time to time and is irrevocable and remains in full force and effect until fully and expressly discharged; and
(d) will not be considered as wholly or partially discharged by the performance at any time of any of the Customer’s Obligations or by any settlement of account or by any other matter or thing whatsoever and will apply to the present and future scope of the Customer’s Obligations.
- The liability of the Guarantor is absolute and will not be affected by any act, omission, matter or thing which but for this provision might operate to release or otherwise exonerate the Guarantor from the Guarantor’s Obligations in whole or in part including:
(a) the grant to the Customer or any other person of any time, waiver or other indulgence or concession, or the discharge or release of any other security held by Complete Wiring in respect of the Customer’s Obligations;
(b) any transaction or arrangement that may take place between Complete Wiring and the Customer, the Guarantor or any other person;
(c) the insolvency of the Customer;
(d) Complete Wiring exercising or refraining from exercising any other security or any of the Rights, powers or remedies conferred on it by law or by an Agreement or any other agreement with any person, or taking or failing to take any other security;
(e) the variation (including a variation which increases the Customer’s Obligations), extinguishment, unenforceability, failure, loss, release, discharge, abandonment or transfer either in whole or in part of an Agreement, or any security now or in the future held by Complete Wiring from the Customer, the Guarantor or any other person;
(f) the Customer’s Obligations or any part of them being or becoming wholly or partially illegal, void, voidable, or unenforceable;
(g) the failure by Complete Wiring to give notice to the Guarantor of any default by the Customer under an Agreement;
(h) any legal limitation, disability, incapacity or other circumstances related to the Customer;
(i) the failure of any Guarantor to execute the document containing this guarantee, or the granting of this guarantee by any Guarantor being or becoming void or voidable; or
(j) the expiry or termination of an Agreement containing this guarantee.
- This guarantee extends to cover any Agreement between Complete Wiring and the Customer as amended, varied or replaced, either with or without the consent of the Guarantor.
- If the Customer becomes insolvent, the Guarantor authorises Complete Wiring to prove for all moneys which the Customer or any other person will have paid under the Agreement and to retain and to carry into a suspense account and to appropriate at the discretion of Complete Wiring any dividends received in the insolvency of the Customer and all other moneys received in respect of the Customer’s Obligations until Complete Wiring has been paid in full in respect of the Customer’s Obligations.
Confidentiality and Intellectual Property
- The Customer must keep strictly confidential all financial, technological, strategic and other business information of Complete Wiring which has been divulged to or become known by the Customer in the course of its dealings with Complete Wiring and which is not generally known outside Complete Wiring’s and the Customer’s respective organisations. The Customer must only use such confidential information for the purpose for which it was disclosed, and only disclose the confidential information to those in its organisation who need to know in connection with the purpose for which it was disclosed. No disclosure may be made to anyone else without the written consent of Complete Wiring (with the exception of disclosure required by law, in which case prior notice of the disclosure must be given to Complete Wiring).
- Complete Wiring retains ownership in all Intellectual Property created by Complete Wiring in providing the Goods and Services. Provided that the Customer pays all amounts due to Complete Wiring under the Agreement, Complete Wiring grants the Customer a royalty-free non-exclusive license to the extent only to use such relevant Intellectual Property for the purpose of obtaining the benefit of the Goods and Services only (but not to further exploit the Intellectual Property).
- The Customer acknowledges and agrees that where any Goods and Services supplied by Complete Wiring to the Customer relate to Construction Work, each invoice or other payment claim rendered by Complete Wiring to the Customer will be a payment claim made under the Building and Construction Industry Payments Act 2004 (Qld).
- Where Complete Wiring is required to provide Goods and/or Services (whether or not it constitutes Construction Work) at a site in the possession or under the control of the Customer (Site), the Customer must give Complete Wiring (including its employees, contractors and agents) access to and possession of sufficient of the Site for at least as long as is necessary to enable Complete Wiring to properly carry out and complete the provide Goods and/or Services.
- Where the Customer believes that there are any defects or omissions in the Goods and/or Services carried out by Complete Wiring at the Site, then Complete Wiring will inspect the Goods and/or Services and, if necessary, endeavour to make good any such defects or omissions in those Goods and/or Services within a reasonable time, provided that:
- the Customer first provides written notice to Complete Wiring detailing the alleged defects or omissions;
- Complete Wiring is given reasonable access to the Site for both initial inspection and, where required, for carrying out any necessary make good works.
- Any formal notice by one party to the other required by these Terms and Conditions or an Agreement must be in writing, and sent to the address for a party with which it normally deals (or to such other address for service of notices that a party has advised to the other). Notices are taken to be received:
- if hand delivered, at the time of delivery;
- if posted, on the 3rd day after posting within Australia or the 5th day after posting for international mail;
- in the case of email or facsimile transmission, at the time of successful transmission.
- The failure by Complete Wiring to enforce any provision of these Terms and Conditions will not be treated as a waiver of that provision, nor will it affect Complete Wiring’s Right to subsequently enforce that provision. If any provision of these Terms and Conditions is invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired thereby.
- These Terms and Conditions and each Agreement based on them will be governed by the laws of the State of Queensland, Australia, and are subject to the exclusive jurisdiction of the courts in that State.
- The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Complete Wiring nor to withhold payment of any invoice because part of that invoice is in dispute.
- Complete Wiring may assign, license or sub-contract all or any part of its Rights and Obligations without the Customer’s consent.
- Neither party will 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 that party.
- The Customer warrants that it has the power to enter into an Agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that the Agreement creates binding and valid legal Obligations on it.
- Neither these Terms and Conditions nor an Agreement based on them will be interpreted, construed or applied adversely to Complete Wiring by reason of their having been drafted by or on behalf of Complete Wiring.