TERMS & CONDITIONS OF TRADE WITH PRIORITY ONE TRADE SERVICES

  1. Definitions
    • “Priority One” means NGroup Priority One Pty Ltd T/A Priority One Trade Services, its successors and assigns or any person acting on behalf of and with the authority of NGroup Priority One Pty Ltd T/A Priority One Trade Services.
    • “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Priority One to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      • if there is more than one Client, is a reference to each Client jointly and severally; and
      • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Client’s executors, administrators, successors and permitted assigns.
    • “Goods” means all Goods or Services (including, but not limited to installation, repairs, design, consultancy or project management work) supplied by Priority One 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).
    • “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Priority One and the Client in accordance with clause 5
    • “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

  1. Acceptance
    • 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.
    • These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and Priority One.
    • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (New South Wales and South Australia), the Electronic Transactions Act 2001 (Australian Capital Territory), the Electronic Transactions (Victoria) Act 2000, the Electronic Transactions Act 2003 (Western Australia), the Electronic Transactions (Northern Territory) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (Tasmania) (whichever is applicable), or any other applicable provisions of that Act or any Regulations referred to in that Act.
    • Priority One shall only supply and connect to Australian approved equipment. All plumbing Goods must be ‘Watermark” approved and all gas pipework must be compliance tested prior to commencing any work on the gas system.
    • In the event that Priority One is required to provide the Services urgently, that may require Priority One’s staff to work outside normal business hours of Monday to Friday from 8:00am to 5:00pm (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then Priority One reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between Priority One and the Client.

  1. Errors and Omissions
    • The Client acknowledges and accepts that Priority One shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by Priority One in the formation and/or administration of this contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by Priority One in respect of the Services.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of Priority One; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

 

  1. Change in Control
    • The Client shall give Priority One 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 Priority One as a result of the Client’s failure to comply with this clause.

 

  1. Price and Payment
    • At Priority One’s sole discretion, the Price shall be either:
      • as indicated on any invoice provided by Priority One to the Client; or
      • the Price as at the date of delivery of the Goods according to Priority One’s current price list; or
      • Priority One’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    • Priority One reserves the right to change the Price:
      • if a variation to the Goods which are to be supplied is requested; or
      • if a variation to the Services originally scheduled (including any applicable plans, specifications or scope) is requested; or
      • where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site and/or crawl spaces, existing state of infrastructure/electrical components/switchboard, non-compliant existing wiring, etc., availability of machinery, safety considerations including the discovery of asbestos or synthetic mineral fibres, prerequisite work by any third party not being completed, hard rock or other obstructions underground, latent soil conditions, or hidden pipes and wiring in walls etc.) which are only discovered on commencement of the Services; or
      • in the event of increases to Priority One in the cost of labour or materials which are beyond Priority One’s control.
    • Variations will be charged for on the basis of Priority One’s quotation, and will be detailed in writing, and shown as variations on Priority One’s invoice. The Client shall be required to respond to any variation submitted by Priority One within ten (10) working days.  Failure to do so will entitle Priority One 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.
    • At Priority One’s sole discretion, a non-refundable deposit may be required.
    • Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Priority One, which may be:
      • on delivery of the Goods;
      • before delivery of the Goods;
      • by way of instalments/progress payments in accordance with Priority One’s payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Goods delivered to the site but not yet installed;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Priority One.
    • Payment may be made by cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Priority One.
    • 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 Priority One nor to withhold payment of any invoice because part of that invoice is in dispute.
    • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Priority One an amount equal to any GST Priority One must pay for any supply by Priority One under this or any other contract for the sale of the Goods. 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.

  1. Nominated Consultants and/or Sub-Contractors
    • Priority One shall engage consultants/sub-contractors, as specified in the quotation, acting solely as agent on behalf of the Client and the following shall apply:
      • Priority One shall be entitled to enter into contracts with such consultants/sub-contractors in the name of the Client; and
      • the Client shall be responsible for all payments to such consultants/sub-contractors; and
      • where Priority One pays the consultant’s/sub-contractor’s account on behalf of the Client, the Client shall reimburse Priority One for the payment of the consultants/sub-contractor’s account together with an account-handling fee within seven (7) days (unless specified otherwise) from the date of submission of the account by Priority One to the Client; and
      • if the Client does not reimburse Priority One within seven (7) days from the date of submission of the account in accordance with sub-clause (c) above, Priority One shall be entitled to:
        • charge interest and any other fees as per clauses 1 and 19.2; and/or
        • enforce any other rights Priority One may have under clause 19 and 20.
      • Priority One does not warrant the accuracy or quality of the consultants/sub-contractor’s work or warrant that their recommendations are appropriate or adequate or are fit for their purpose or that they are not given negligently. The Client agrees that they shall not make any demand on Priority One or commence any legal proceedings against Priority One, and Priority One shall have no liability, whether in negligence or otherwise, to the Client in relation to any work performed by the consultant/sub-contractor.

  1. Delivery
    • Subject to clause 2 it is Priority One’s responsibility to ensure that the Services start as soon as it is reasonably possible.
    • The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Priority One claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Priority One’s control, including but not limited to any failure by the Client to:
      • make a selection; or
      • have the site ready for the Services; or
      • notify Priority One that the site is ready.
    • At Priority One’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
    • Priority One may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    • Any time specified by Priority One for delivery of the Goods is an estimate only and Priority One 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 to be delivered at the time and place as was arranged between both parties. In the event that Priority One is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then Priority One shall be entitled to charge a reasonable fee for redelivery and/or storage.

  1. Risk
    • If Priority One retains ownership of the Goods under clause 14 then:
      • where Priority One is supplying Goods only, all risk for the Goods shall immediately pass to the Client on delivery and the Client must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either;
        • the Client or the Client’s nominated carrier takes possession of the Goods at Priority One’s address; or
        • the Goods are delivered by Priority One or Priority One’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
      • where Priority One is to both supply and install Goods then Priority One shall maintain appropriate insurance until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.
    • Notwithstanding the provisions of clause 1 if the Client specifically requests Priority One to leave Goods outside Priority One’s premises for collection or to deliver the Goods to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Client’s expense.
    • In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client or due to complaints from neighbours or local authorities, then the Client agrees to notify Priority One immediately upon any proposed changes. The Client agrees to indemnify Priority One against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 2.
    • The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any connections (including, but not limited to, meter boxes, main switches, circuit breakers, cabling, pipes, valves, couplings etc.) are of suitable capacity to handle the Goods once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roofing, crawl spaces or inspection points), Priority One reasonably forms the opinion that the Client’s premises is not safe for the installation of Goods to proceed then Priority One shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 2 above) until Priority One is satisfied that it is safe for the installation to proceed. Priority One may at its sole discretion agree to bring the premises up to a standard suitable for installation to proceed but all such Services undertaken and any additional Goods supplied shall be treated as a variation and be charged for in addition to the Price.
    • Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.
    • The final location of the wall, window or floor unit must be determined on site by the Client.
    • Priority One shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however Priority One cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
    • In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved.
    • The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
    • In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify Priority One immediately upon any proposed changes. The Client agrees to indemnify Priority One against any additional costs incurred with such a relocation of electrical wiring.  All such variances shall be invoiced in accordance with clause 2.
    • Where the Client has supplied goods for Priority One to complete the Services, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the goods. Priority One shall not be responsible for any defects in the goods, any loss or damage to the Services (or any part thereof), howsoever arising from the use of goods supplied by the Client.
    • The Client acknowledges that Priority One is only responsible for parts that are replaced by Priority One and that in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify Priority One against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising (including, but not limited to, loss of perishables, flooding and/or damage to clothing).
    • The Client acknowledges and agree that where Priority One has performed temporary repairs that:
      • Priority One offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
      • Priority One will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair.
    • The Client acknowledges that Goods supplied may:
      • fade or change colour over time; and
      • expand, contract or distort as a result of exposure to heat, cold, weather; and
      • mark or stain if exposed to certain substances; and
      • be damaged or disfigured by impact or scratching; and
      • create undesirable smells caused by a system as a result of its normal operation.
    • Whilst Priority One shall take all due care to prevent any damage to the Client’s existing tin/colourbond or tiled roof during the performance of the Services, Priority One shall not accept liability in the event of any damage caused to the Client’s roof. However, Priority One may offer to repair or replace any such damage, provided the Client has available the necessary goods, at the time of installation.
    • In the event that Priority One discovers asbestos/hazardous materials whilst undertaking any Services Priority One shall immediately advise the Client of the same and shall be entitled to suspend the Services pending a risk assessment in relation to those materials. The Client shall be liable for all additional costs (howsoever arising) incurred by Priority One as a result of the discovery of asbestos/hazardous materials and/or any suspension of Services in relation thereto.
    • The Client acknowledges that the presence of plant or tree root growth and/or other blockages may indicate damaged pipe work and therefore where Priority One is requested to merely clear such blockages, Priority One can offer no guarantee against reoccurrence or further damage. In the event of collapse during the pipe clearing process, Priority One will immediately advise the Client of the same and shall provide the Client with an estimate for the full repair of the damaged pipe work.
    • In the event that the Client requests Priority One to use drain/pipe unblocking equipment, and Priority One does not recommend the use of such equipment due to the risk of the equipment becoming lodged or stuck, Priority One may require the Client or their agent to authorise commencement of the Services in writing. If the drain/pipe unblocking equipment subsequently becomes lodged or stuck, the Client shall be responsible for the cost of repair, replacement and/or retrieval of said equipment.

  1. Specifications
    • The Client acknowledges that:
      • all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in Priority One’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Priority One; and
      • while Priority One may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that Priority One has given these in good faith, and are estimates based on Clean Energy Council (CEC) or other industry prescribed estimates.
    • The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.

  1. Design Services
    • Priority One shall be entitled to rely on the accuracy of any plans, specifications (including, but not limited to CAD drawings) and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Priority One accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
    • The Client acknowledges and accepts that the Services or documentation that have been prepared on the information and data available at this time (including, but not limited to schematics, blueprints, by-laws or other safety criteria, etc.). Should any of these factors change, then Priority One cannot guarantee that the recommendations and/or estimated outcomes will still apply.

  1. Access
    • The Client shall ensure that Priority One has clear and free access to the work site at all times to enable them to deliver the Services. Priority One 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 Priority One.
    • It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, unloading, lifting or other equipment as may be deemed necessary by Priority One.

  1. Underground Locations
    • Unless otherwise agreed in writing between the Client and Priority One it shall be the Client’s responsibility to advise the precise location of all underground services on the worksite and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
    • Whilst Priority One will take all care to avoid damage to any underground services the Client agrees to indemnify Priority One in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified and notified as per clause 1.

  1. Compliance with Laws
    • The Client and Priority One 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.
    • The Client shall obtain (at the expense of the Client) all licenses, approvals and certifications that may be required for the Services.
    • The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction and/or other applicable sites and any other relevant safety standards or legislation.
    • If during the course of installation when the Services are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by Priority One, then Priority One shall notify the Client immediately. The power if isolated will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Client accepts and agrees that any costs associated with the rectification Services including any Goods and labour shall be to the Client’s account.
    • Any live work or Services undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. Priority One’s live work procedures are designed to eliminate risk of injury to Priority One’s employees, damage to the Client’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Services for which additional charges may be applicable. This shall be invoiced in accordance with clause 2.

  1. Title
    • Priority One and the Client agree that ownership of the Goods shall not pass until:
      • the Client has paid Priority One all amounts owing to Priority One; and
      • the Client has met all of its other obligations to Priority One.
    • Receipt by Priority One 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.
    • It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
      • the Client is only a bailee of the Goods and must return the Goods to Priority One on request.
      • the Client holds the benefit of the Client’s insurance of the Goods on trust for Priority One and must pay to Priority One the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      • 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 Priority One and must pay or deliver the proceeds to Priority One on demand.
      • 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 Priority One and must sell, dispose of or return the resulting product to Priority One as it so directs.
      • the Client irrevocably authorises Priority One to enter any premises where Priority One believes the Goods are kept and recover possession of the Goods.
      • Priority One may recover possession of any Goods in transit whether or not delivery has occurred.
      • 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 Priority One.
      • Priority One may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • 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 and/or collateral (account) – being a monetary obligation of the Client to Priority One for Services – that have previously been supplied and that will be supplied in the future by Priority One to the Client.
    • The Client 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 Priority One may reasonably require to;
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 15.3(a)(ii);
      • indemnify, and upon demand reimburse, Priority One for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of Priority One;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Priority One;
      • immediately advise Priority One of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
    • Priority One 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.
    • The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by Priority One, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client must unconditionally ratify any actions taken by Priority One under clauses 3 to 15.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 15) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

  1. Security and Charge
    • In consideration of Priority One agreeing to supply the Goods, 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).
    • The Client indemnifies Priority One from and against all Priority One’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Priority One’s rights under this clause.
    • The Client irrevocably appoints Priority One and each director of Priority One as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.

 

  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Client acknowledges and accepts that any warranty work shall only be performed during Priority One’s normal business hours of Monday to Friday, 8:00am to 5:00pm.
    • The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Priority One 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 as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Priority One to inspect the Goods.
    • Further to clause 2, claims that are attended by Priority One and subsequently are found not to be covered by the warranty, then Priority One shall be entitled to charge for the costs involved.
    • 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).
    • Priority One acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Priority One makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Priority One’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, Priority One’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If Priority One is required to replace the Goods under this clause or the CCA, but is unable to do so, Priority One may refund any money the Client has paid for the Goods.
    • If the Client is not a consumer within the meaning of the CCA, Priority One’s liability for any defect or damage in the Goods is:
      • limited to the value of any express warranty or warranty card provided to the Client by Priority One at Priority One’s sole discretion;
      • limited to any warranty to which Priority One is entitled, if Priority One did not manufacture the Goods;
      • otherwise negated absolutely.
    • Subject to this clause 17, returns will only be accepted provided that:
      • the Client has complied with the provisions of clause 1; and
      • Priority One has agreed that the Goods are defective; and
      • the Goods are returned within a reasonable time at the Client’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.
    • Notwithstanding clauses 2 to 17.10 but subject to the CCA, Priority One shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store any Goods;
      • the Client using the Goods for any purpose other than that for which they were designed;
      • the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Client failing to follow any instructions or guidelines provided by Priority One;
      • fair wear and tear, any accident, or act of God.
    • Priority One may in its absolute discretion accept non-defective Goods for return in which case Priority One may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
    • Notwithstanding anything contained in this clause if Priority One is required by a law to accept a return then Priority One will only accept a return on the conditions imposed by that law.

 

  1. Intellectual Property
    • Where Priority One has designed, drawn or developed Goods (including, but not limited to CAD files created by Priority One) for the Client, then the copyright in any designs and drawings and documents shall remain the property of Priority One. Under no circumstances may such designs, drawings and documents be used without the express written approval of Priority One.
    • The Client warrants that all designs, specifications or instructions given to Priority One will not cause Priority One to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Priority One against any action taken by a third party against Priority One in respect of any such infringement.
    • The Client agrees that Priority One may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Priority One has created for the Client.

  1. Default and Consequences of Default
    • 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 Priority One’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes Priority One any money the Client shall indemnify Priority One from and against all costs and disbursements incurred by Priority One in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Priority One’s contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies Priority One may have under this contract, if a Client has made payment to Priority One, 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 Priority One under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
    • Without prejudice to Priority One’s other remedies at law Priority One shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Priority One shall, whether or not due for payment, become immediately payable if:
      • any money payable to Priority One becomes overdue, or in Priority One’s opinion the Client will be unable to make a payment when it falls due;
      • the Client has exceeded any applicable credit limit provided by Priority One;
      • 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

  1. Cancellation
    • Without prejudice to any other remedies Priority One may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Priority One may suspend or terminate the supply of Goods to the Client. Priority One will not be liable to the Client for any loss or damage the Client suffers because Priority One has exercised its rights under this clause.
    • Priority One may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Priority One shall repay to the Client any money paid by the Client for the Goods. Priority One shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Priority One as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for Goods 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.

  1. Privacy Act 1988
    • The Client agrees for Priority One 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 Priority One.
    • The Client agrees that Priority One may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
      • to assess an application by the Client; and/or
      • to notify other credit providers of a default by the Client; and/or
      • 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
      • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
    • The Client consents to Priority One being given a consumer credit report to collect overdue payment on commercial credit.
    • The Client agrees that personal credit information provided may be used and retained by Priority One for the following purposes (and for other agreed purposes or required by):
      • the provision of Goods; and/or
      • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      • enabling the collection of amounts outstanding in relation to the Goods.
    • Priority One may give information about the Client to a CRB for the following purposes:
      • to obtain a consumer credit report;
      • allow the CRB to create or maintain a credit information file about the Client including credit history.
    • The information given to the CRB may include:
      • personal information as outlined in 1 above;
      • name of the credit provider and that Priority One is a current credit provider to the Client;
      • whether the credit provider is a licensee;
      • type of consumer credit;
      • 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);
      • 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 Priority One has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
      • information that, in the opinion of Priority One, the Client has committed a serious credit infringement;
      • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    • The Client shall have the right to request (by e-mail) from Priority One:
      • a copy of the information about the Client retained by Priority One and the right to request that Priority One correct any incorrect information; and
      • that Priority One does not disclose any personal information about the Client for the purpose of direct marketing.
    • Priority One 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 contract or is required to be maintained and/or stored in accordance with the law.
    • The Client can make a privacy complaint by contacting Priority One via e-mail. Priority One 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 oaic.gov.au.

 

  1. Unpaid Seller’s Rights
    • Where the Client has left any item with Priority One for repair, modification, exchange or for Priority One to perform any other service in relation to the item and Priority One has not received or been tendered the whole of any monies owing to it by the Client, Priority One shall have, until all monies owing to Priority One are paid:
      • a lien on the item; and
      • 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.
    • The lien of Priority One shall continue despite the commencement of proceedings, or judgment for any monies owing to Priority One having been obtained against the Client.

 

  1. Confidentiality
    • Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
  2. Other Applicable Legislation
    • At Priority One’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 (Victoria), Building and Construction Industry Security of Payments Act 1999 (New South Wales), Construction Contracts Act 2004 (Western Australia), Building and Construction Industry Payments Act 2004 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory), Building and Construction Industry Security of Payments Act 2009 (Tasmania), Building and Construction Industry Security of Payments Act 2009 (South Australia) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
    • Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 1 (each as applicable), except to the extent permitted by the Act where applicable.

 

  1. Service of Notices
    • Any written notice given under this contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this contract;
      • by sending it by registered post to the address of the other party as stated in this contract;
      • 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;
      • if sent by email to the other party’s last known email address.
    • 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.

  1. Trusts
    • If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Priority One may have notice of the Trust, the Client covenants with Priority One as follows:
      • the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
      • the Client will not without consent in writing of Priority One (Priority One will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
        • the removal, replacement or retirement of the Client as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

 

  1. General
    • 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.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of the State or Territory, whichever applicable as being the State or Territory in which the Goods and/or Services were provided by Priority One to the Client however, in the event of a dispute that deems necessary for the matter to be referred to a Magistrates or higher Court then jurisdiction will be subject to the Courts of Victoria, being the State in which Priority One has its principal place of business.
    • Subject to clause 17, Priority One 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 Priority One of these terms and conditions (alternatively Priority One’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
    • Priority One may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
    • The Client cannot licence or assign without the written approval of Priority One.
    • Priority One may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Priority One’s sub-contractors without the authority of Priority One.
    • The Client agrees that Priority One 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 Priority One to provide Goods to the Client.
    • 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.
    • Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.