Terms & Conditions of Trade

1. Definitions

1. “Acknowledgment Document” means the document signed by the Client in conjunction with these Terms and Conditions of Trade and applicable if the Consultant elects, whereby the Client acknowledges the extent and effect of the provision of security the Client provides to the Consultant in consideration of the provision of Products or Services.
2. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Consultant to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
   1. if there is more than one Client, is a reference to each Client jointly and severally; and
   2. if the Client is a partnership, it shall bind each partner jointly and severally; and
   3. if the Client is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
   4. includes the Client’s executors, administrators, successors, and permitted assigns.
3. “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
4. “Consultant” means TLS Management Pty Ltd T/A Exelcom, its successors and assigns or any person acting on behalf of and with the authority of TLS Management Pty Ltd T/A Exelcom.
5. “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
6. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using the Consultant’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
7. “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
8. “Price” means the Price payable (plus any GST where applicable) for the Products or Services as agreed between the Consultant and the Client in accordance with clause 6 below.
9. “Services” means all Products (which includes any hardware or software, whether supplied from a third party or where custom developed or programmed for the Client, accessories or parts, etc.) and/or Services (which includes any advice or recommendations, installation of Products, goods, support, etc.) provided by the Consultant to the Client at the Client’s request from time to time (where the context so permits the terms ‘Product’ or ‘Services’ shall be interchangeable for the other).
10. “Subcontractor” means any third-party subcontractor engaged by the Consultant to assist and carry out services to complete the Services as detailed in the Consultant quote to Client.

2. Acceptance

1. The parties acknowledge and agree that:
   1. they have read and understood the terms and conditions contained in this Contract; and
   2. the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Products or provision of the Services.
2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
4. The Client acknowledges and accepts that the supply of Products on credit shall not take effect until the Client has completed a credit application with the Consultant and it has been approved with a credit limit established for the account.
5. In the event that the supply of Products requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Consultant reserves the right to refuse delivery.
6. The Client shall as soon as practicable make available to the Consultant all information, documents, software, hardware, and other particulars required by the Consultant for the provision of the Services.
7. Provided the Consultant acts reasonably, they are entitled to assume that any request in connection with the Services that the Consultant receives from the Client (or the Client’s agents, employees or contractors) or from the premises where the Services are being provided or accessed, is authorised by the Client.
8. The Consultant may from time to time subcontract some of the Services. The Consultant will secure a quote or estimate for such services and gain the Client’s approval before engaging the Subcontractor for the Services. The Client is liable to pay the Subcontractor’s costs directly to the Subcontractor once the Subcontractor’s account has been checked and certified for payment by the Consultant. The Consultant may charge as an extra for this co-ordination work based on current hourly charge rates.
9. 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 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Release Waiver

1. Where the Consultant gives any advice, recommendation, information, assistance or service provided by the Consultant in relation to Products or Services (including, but not limited to, additional measures required to protect against potential security breaches or cyber-attack, etc.) supplied is given in good faith to the Client, or the Client’s agent and is based on the Consultant’s own knowledge and experience and shall be accepted without liability on the part of the Consultant, (human error is possible under these circumstances), and the Consultant shall make all effort to offer the best solution to the Client. Where such advice or recommendations are not acted upon then the Consultant shall require the Client or their agent to authorise commencement of the Services in writing. The Consultant shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.

4. Errors and Omissions

1. The Client acknowledges and accepts that the Consultant shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
   1. resulting from an inadvertent mistake made by the Consultant in the formation and/or administration of this Contract; and/or
   2. contained in/omitted from any literature (hard copy and/or electronic) supplied by the Consultant in respect of the Services.
2. In circumstances where the Client is required to place an order for Products, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Products (whether they are made to order Products or not) (“Client Error”). The Client must pay for all Products it orders from the Consultant notwithstanding that such Products suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Products. The Consultant is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

5. Change in Control

1. The Client shall give the Consultant 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, change of trustees, or business practice). The Client shall be liable for any loss incurred by the Consultant as a result of the Client’s failure to comply with this clause.

6. Price and Payment

1. At the Consultant’s sole discretion, the Price shall be either:
   1. as indicated on any invoice provided by the Consultant to the Client upon placement of an order for Products; or
   2. the Price as at the date of Delivery of the Products according to the Consultant’s current price list, as previously disclosed to the Client upon the Client’s placement of an order for Products; or
   3. the Consultant’s quoted Price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
2. The Consultant reserves the right to change the Price:
   1. if a variation to the plan of scheduled Services, or Client specifications is requested (including, but not limited to, additional work required due to hidden or unidentifiable difficulties not evident prior to commencement of the Services, any request to investigate and/or repair any faults or defects outside the Consultant’s normal business hours); or
   2. as a result of increases beyond the Consultant’s reasonable control in the cost of materials or labour (including, but not limited to, third-party network operator or supplier costs, or overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges etc.).
3. Variations will be charged for on the basis of the Consultant’s quotation, and will be detailed in writing, and shown as variations on the Consultant’s invoice. The Client shall be required to respond to any variation submitted by the Consultant within ten (10) working days. Failure to do so will entitle the Consultant 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.
4. At the Consultant’s sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for Products, in accordance with any quotation provided by the Consultant or as notified to the Client prior to the placement of an order for Products.
5. Time for payment for the Products being of the essence, the Price will be payable by the Client on the date/s determined by the Consultant, which may be:
   1. by way of instalments/progress payments in accordance with the Consultant’s payment schedule; or
   2. for certain approved Clients, due thirty (30) days following the date of any invoice given to the Client by the Consultant; or
   3. the date specified on any invoice or other form as being the date for payment; or
   4. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Consultant.
6. Payment may be made by cash, bank 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 the Consultant.
7. The Consultant may in its discretion allocate any payment received from the Client towards any invoice that the Consultant determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Consultant may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Consultant, payment will be deemed to be allocated in such manner as preserves the maximum value of the Consultant’s Purchase Money Security Interest (as defined in the PPSA) in the Products.
8. 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 the Consultant nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify the Consultant in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Consultant investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Consultant placing the Client’s account into default and subject to default interest in accordance with clause 18.1.
9. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Consultant an amount equal to any GST the Consultant must pay for any supply by the Consultant under this or any other agreement for the sale of the Products. 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.

7. Provision of the Services

1. The Services are provided on the basis of specifications, information and instructions provided by the Client to the Consultant (whether written or verbal). The Client acknowledges that it is their responsibility to ensure that such are detailed sufficiently to satisfy the Consultant’s requirements of interpretation and understanding, as once accepted by the Client, the Consultant’s quotation shall be deemed to interpret correctly those specifications, information and instructions. Therefore, the Consultant shall not accept any liability for the supply of Services contrary to the Client’s intention, or errors or omissions in the Services, due to insufficient or inadequate provision of detailed specifications, information and instructions by the Client or oversight or misinterpretation thereof, and the Consultant may charge the Client additional costs incurred thereby in remedying the Services, and if reasonably practical, will notify the Client of such costs before they are incurred and the Client agrees to them.
2. Where the performance of any contract with the Client requires the Consultant to obtain products and/or services from a third party, the Contract between the Consultant and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to the Consultant, and the Client shall be liable for the cost in full including the Consultant’s margin of such products and/or services.
3. The Consultant may supply Products to the Client where it is required for the Provision of Services, and
   1. delivery (“Delivery”) of the Products is taken to occur at the time that the Consultant (or the Consultant’s nominated carrier) delivers the Products to the Client’s nominated address even if the Client is not present at the address;
   2. the cost of Delivery will be payable by the Client in accordance with the quotation provided by the Consultant to the Client, or as otherwise notified to the Client prior to the placement of an order for Products;
   3. the Consultant may deliver the Products in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions;
   4. risk of damage to or loss of the Products passes to the Client on Delivery, and the Client must insure the Products on or before Delivery; and
   5. the Client may request upgrades to, or newer versions of the Products and the Consultant will advise the Client of the availability of such Products and the additional cost associated with the supply of the Products.
4. Any time specified by the Consultant for Provision of the Services is an estimate only and the Consultant 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 Services to be supplied at the time and place as was arranged between both parties. In the event that the Consultant is unable to supply the Services as agreed solely due to any action or inaction of the Client then the Consultant shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.

8. Repair Notice

1. If the Client is a consumer within the meaning of the CCA, this clause constitutes a Repair Notice given under the Australian Consumer Law (“ACL”), and the Client acknowledges that:
   1. the repair of equipment may result in the loss of any files stored on the hard drive, etc. (“User-Generated Data”). It is the sole responsibility of the Client to back-up any User-Generated Data which they believe to be important, valuable, or irreplaceable prior to submitting the equipment for repair; and
   2. equipment presented for repair may be replaced by, or repaired with, refurbished Products of the same type rather than being repaired.

9. Client’s Obligations

1. The Client shall:
   1. co-operate with the Consultant in connection with the provision of the Services, and shall ensure that the work area is free from hazards and all other objects (including but not limited to, cabling or items that are likely to break) that may limit such access to the Client’s premises, equipment and adequate working space and facilities, such as electrical outlets, within a reasonable distance from the equipment. The Consultant shall not be liable for any loss or damage to any property, or injury to any person, that may be caused by the Client’s failure to comply with this clause 9.1(a);
   2. obtain, keep and make available to the Consultant, machine readable copies of all programs, operating systems, drivers and data files relating to the equipment. The Consultant does not assume any liability as a consequence of the Client’s inability to use its machine readable data; and
   3. not modify, create any derivative work of, or incorporate any other goods into the network or any portion thereof. The Consultant shall not be responsible for the maintenance of, or the repair of problems or malfunctions caused by any modifications of enhancements made by the Client or by anyone else other than the Consultant.
2. The Client accepts and acknowledges that during the course of the Services:
   1. existing plastics or connections may be broken to access a repair area and/or carry out general maintenance, which is beyond the Consultant control. Any additional cost associated with replacement items shall be borne by the Client; and
   2. where the Client chooses to deliver their laptop, computer or any other digital device to the Consultant’s business premises for repair, all risk to such items remains with the Client in the first instance, any damage to the Products or any personal injury experienced during this delivery method, shall be the Client’s responsibility.

10. Client’s Property and Materials

1. In the case of property and materials left with the Consultant without specific instructions, the Consultant shall be free to dispose of them at the end of three (3) months after the Consultant receiving them and to accept and retain the proceeds (such sale is to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods), if any, and/or charge the Client in addition to the Price to cover the Consultant’s own costs in storing, handling and/or disposing of such property.
2. The lien of the Consultant shall continue despite the commencement of proceedings, or judgment for any monies owing to the Consultant having been obtained against the Client.
3. Where materials or equipment are supplied by the Client, the Consultant accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.

11. Risk and Limitation of Liability

1. The Client acknowledges and agrees that the Consultant shall not be held responsible or liable for:
   1. any loss, corruption, or deletion of files or data (including but not limited to software programmes) resulting from illegal hacking or Services provided by the Consultant. Whilst the Consultant will endeavour to restore files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data as per clause 8.1(a). The Client accepts full responsibility for the Client’s software and data, and the Consultant is not required to advise or remind the Client of appropriate backup procedures;
   2. loss or damage caused by any component failure, notwithstanding any rights the Client has under the CCA, or the Client’s software or hardware caused by any ‘updates’ provided for that software; and
   3. any unlicensed software, data loss or problems arising caused by the user or software.
2. The Client further acknowledges and agrees that:
   1. the Consultant does not guarantee the performance or transmission speed or quality of any data;
   2. transmission of data may be unavailable from time to time due to scheduled maintenance and/or upgrades to websites, servers or networks by third parties; and
   3. there are inherent hazards in electronic distribution (including, but not limited to electrical interference, surges or spikes, high traffic volume affecting speed, etc.) and as such the Consultant cannot warrant against delays or errors in transmitting data between the Client and any person or entity the Client conducts communications with including orders, and the Client agrees that the Consultant will not be liable for any losses which the Client suffers as a result of delays or errors in transmitting orders or other communications and/or documents.
3. If during the Provision of the Services, the Consultant is required to perform a backup of any data to the Consultant’s server as the Consultant sees fit in order to repair computers/devices such information data will be held for a maximum of thirty (30) days. The Client must inform the Consultant within thirty (30) days (commencing from the repair date) if any data is missing so that the Consultant can attempt to restore the missing data. Whilst the Consultant will take all possible precaution to protect the Client’s data on the Consultant servers it may be required in some circumstances to view personal data in order to test a successful data recovery or data restore procedure, the Consultant will treat such information as confidential and shall not disclose any or part thereof of said information, unless it falls under the umbrella as detailed in clause 11.4. After thirty (30) days the Consultant will delete the data, and the Consultant accepts no liability for deletion of files should the Client fail to comply with this clause.
4. The Client acknowledges that it is the policy of the Consultant is to report all findings of illegal material (including, but not limited to, images and software) to the relevant authorities.

12. Compliance with Laws

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

13. Title

1. The Client acknowledges and agrees that the Client’s obligations to the Consultant for the provision of the Services shall not cease, and ownership of the Products (if applicable) shall not pass, until:
   1. the Client has paid the Consultant all amounts owing to the Consultant; and
   2. the Client has met all of its other obligations to the Consultant.
2. Receipt by the Consultant 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.
3. It is further agreed that, until ownership of the Products passes to the Client in accordance with clause 13.1:
   1. the Client is only a bailee of the Products and must return the Products to the Consultant on request;
   2. the Client holds the benefit of the Client’s insurance of the Products on trust for the Consultant and must pay to the Consultant the proceeds of any insurance in the event of the Products being lost, damaged or destroyed;
   3. the Client must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Products then the Client must hold the proceeds of any such act on trust for the Consultant and must pay or deliver the proceeds to the Consultant on demand;
   4. the Client should not convert or process the Products 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 the Consultant and must sell, dispose of or return the resulting product to the Consultant as it so directs;
   5. the Client irrevocably authorises the Consultant to enter any premises where the Consultant believes the Products are kept and recover possession of the Products;
   6. the Consultant may recover possession of any Products in transit whether or not Delivery has occurred;
   7. the Client shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of the Consultant; and
   8. the Consultant may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Client.

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

1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Products that have previously been supplied and that will be supplied in the future by the Consultant to the Client, and the proceeds from such Products.
3. The Client undertakes to:
   1. 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 the Consultant may reasonably require to:
      1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
      2. register any other document required to be registered by the PPSA; or
      3. correct a defect in a statement referred to in clause 14.3(a)(i) or 14.3(a)(ii).
   2. indemnify, and upon demand reimburse, the Consultant 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 Products charged thereby;
   3. not register a financing change statement in respect of a security interest without the prior written consent of the Consultant;
   4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products or the proceeds of such Products in favour of a third party without the prior written consent of the Consultant; and
   5. immediately advise the Consultant of any material change in its business practices of selling the Products which would result in a change in proceeds derived from such sales.
4. The Consultant 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.
5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7. Unless otherwise agreed to in writing by the Consultant, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8. The Client must unconditionally ratify any actions taken by the Consultant under clauses 14.3 to 14.5.
9. Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

15. Security and Charge

1. In consideration of the Consultant agreeing to supply the Products and/or provide its Services, the Client grants the Consultant a security interest by way of a floating charge (registerable by the Consultant pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, including without limitation any assets identified in an Acknowledgment Document (if any), to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Products and/or Services under this Contract and/or permit the Consultant to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth). The security interest arises upon the Client’s acceptance of these terms and is not conditional on the existence of any Acknowledgment Document.
2. The Client indemnifies the Consultant from and against all the Consultant’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Consultant’s rights under this clause.
3. As a separate and continuing security, in the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 13.1, 14.2 and 15.1 as applicable and is deemed insufficient by the Consultant to secure the repayment of monies owed by the Client to the Consultant, the Client hereby grants the Consultant a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The Client must, upon request, provide all information the Consultant reasonably requires to identify and describe such property (including title particulars). This clause operates whether or not any Acknowledgment Document exists.

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

1. The Client must inspect the Consultant’s Services on completion (or Products on delivery) and must within two (2) days notify the Consultant in writing of any evident defect, error or omission in the Services provided (including the Consultant’s workmanship) or of any other failure by the Consultant to comply with the description of, or quotation for, the Services which the Consultant was to provide. The Client must notify any other alleged defect in the Consultant’s Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Consultant to review the Services that were provided.
2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
3. The Consultant acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Consultant makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Products. The Consultant’s liability in respect of these warranties is limited to the fullest extent permitted by law.
5. If the Client is a consumer within the meaning of the CCA, the Consultant’s liability is limited to the extent permitted by section 64A of Schedule 2.
6. If the Consultant is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then the Consultant may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
7. If the Client is not a consumer within the meaning of the CCA, the Consultant’s liability for any defective Services is:
   1. limited to the value of any express warranty or warranty card provided to the Client by the Consultant at the Consultant’s sole discretion;
   2. limited to any warranty to which the Consultant is entitled, if the Consultant did not manufacture the Products; and/or
   3. otherwise negated absolutely.
8. Subject to this clause 16, returns will only be accepted provided that:
   1. the Client has complied with the provisions of clause 16.1; and
   2. the Consultant has agreed that the Products are defective; and
   3. the Products are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
   4. the Products are returned in as close a condition to that in which they were delivered as is possible.
9. Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, the Consultant shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
   1. the Client failing to properly maintain or store any Products;
   2. the Client using the Products for any purpose other than that for which they were designed;
   3. the Client continuing the use of any Products after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
   4. interference with the Products by the Client or any third party without the Consultant’s prior approval;
   5. the Client failing to follow any instructions or guidelines provided by the Consultant; and/or
   6. fair wear and tear, any accident, or act of God.
10. In the case of second-hand Products, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second-hand Products prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Consultant as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Consultant has agreed to provide the Client with the second-hand Products and calculated the Price of the second-hand Products in reliance of this clause 16.10.
11. The Consultant may in its absolute discretion accept non-defective Products for return in which case the Consultant may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Products plus any freight costs.
12. Notwithstanding anything contained in this clause if the Consultant is required by a law to accept a return, then the Consultant will only accept a return on the conditions imposed by that law.

17. Intellectual Property

1. Where the Consultant has supplied the Client with computer software (including coding and routines) and/or has designed, drawn or developed Products for the Client, the Consultant retains full ownership of the computer software and/or the copyright in any designs and drawings and documents shall remain the property of the Consultant, and the Consultant hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use the software (under the terms of the licence it was supplied) and/or Products.
2. The Client warrants that all designs or instructions to the Consultant will not cause the Consultant to infringe any patent, registered design or trademark in the execution of the Client’s order. Furthermore, the Client agrees to indemnify, defend, and hold the Consultant harmless from all loss incurred or suffered by the Consultant arising from any claims (including third party claims) or demands against them where such loss was caused by any infringement or alleged infringement of any person’s intellectual property rights by the Client during the use of the Services.

18. Default and Consequences of Default

1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Consultant’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Client owes the Consultant any money, the Client shall indemnify the Consultant from and against all costs and disbursements:
   1. incurred; and/or
   2. which would be incurred and/or
   3. for which by the Client would be liable;
   in regard to legal costs on a solicitor and own client basis incurred in exercising the Consultant’s rights under these terms and conditions, internal administration fees, the Consultant’s Contract fees owing for breach of these terms and conditions, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
3. Further to any other rights or remedies the Consultant may have under this Contract, if a Client has made payment to the Consultant, 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 the Consultant under this clause 18 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.
4. Without prejudice to the Consultant’s other remedies at law the Consultant shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Consultant shall, whether or not due for payment, become immediately payable if:
   1. any money payable to the Consultant becomes overdue, or in the Consultant’s opinion the Client will be unable to make a payment when it falls due;
   2. the Client has exceeded any applicable credit limit provided by the Consultant;
   3. 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
   4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

19. Cancellation

1. Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Products and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
2. If the Consultant, due to reasons beyond the Consultant’s reasonable control, is unable to deliver any Products and/or Services to the Client, the Consultant may cancel any Contract to which these terms and conditions apply or cancel Delivery of Products and/or Services at any time before the Products and/or Services are delivered by giving written notice to the Client. On giving such notice the Consultant shall repay to the Client any money paid by the Client for the Products and/or Services. The Consultant shall not be liable for any loss or damage whatsoever arising from such cancellation.
3. The Client may cancel Delivery of the Products and/or Services by written notice served within forty-eight (48) hours of placement of the order, prior to the Products being dispatched or commencement of the provision of the Services. If the Client cancels Delivery in accordance with this clause 19.3, the Client will not be liable for the payment of any costs of the Consultant, except where a deposit is payable in accordance with clause 6.4.
4. However, cancellation of orders for Products made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.

20. Privacy Policy

1. All emails, documents, images, or other recorded information held or used by the Consultant is Personal Information, as defined and referred to in clause 20.4, and therefore considered Confidential Information. The Consultant acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Consultant acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Consultant that may result in serious harm to the Client, the Consultant will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
2. Notwithstanding clause 20.1, privacy limitations will extend to the Consultant in respect of Cookies where the Client utilises the Consultant’s website to make enquiries. The Consultant agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
   1. IP address, browser, email client type and other similar details;
   2. tracking website usage and traffic; and
   3. reports are available to the Consultant when the Consultant sends an email to the Client, so the Consultant may collect and review that information (“collectively Personal Information”).
   If the Client consents to the Consultant’s use of Cookies on the Consultant’s website and later wishes to withdraw that consent, the Client may manage and control the Consultant’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
3. The Client agrees for the Consultant to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by the Consultant.
4. The Client agrees that the Consultant may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
   1. to assess an application by the Client; and/or
   2. to notify other credit providers of a default by the Client; and/or
   3. 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
   4. to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
5. The Client consents to the Consultant being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
6. The Client agrees that personal credit information provided may be used and retained by the Consultant for the following purposes (and for other agreed purposes or required by):
   1. the provision of Products; and/or
   2. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Products; and/or
   3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
   4. enabling the collection of amounts outstanding in relation to the Products.
7. The Consultant may give information about the Client to a CRB for the following purposes:
   1. to obtain a consumer credit report; and
   2. allow the CRB to create or maintain a credit information file about the Client including credit history.
8. The information given to the CRB may include:
   1. Personal Information as outlined in 20.4 above;
   2. name of the credit provider and that the Consultant is a current credit provider to the Client;
   3. whether the credit provider is a licensee;
   4. type of consumer credit;
   5. 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);
   6. advice of consumer credit defaults (provided the Consultant is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Consultant has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
   7. information that, in the opinion of the Consultant, the Client has committed a serious credit infringement; or
   8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
9. The Client shall have the right to request (by e-mail) from the Consultant:
   1. a copy of the Personal Information about the Client retained by the Consultant and the right to request that the Consultant correct any incorrect Personal Information; and
   2. that the Consultant does not disclose any Personal Information about the Client for the purpose of direct marketing.
10. The Consultant will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
11. The Client can make a privacy complaint by contacting the Consultant via e-mail. The Consultant will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

21. Service of Notices

1. Any written notice given under this Contract shall be deemed to have been given and received:
   1. by handing the notice to the other party, in person;
   2. by leaving it at the address of the other party as stated in this Contract;
   3. by sending it by registered post to the address of the other party as stated in this Contract;
   4. if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission; or
   5. if sent by email to the other party’s last known email address.
2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

22. Trusts

1. If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not the Consultant may have notice of the Trust, the Client covenants with the Consultant as follows:
   1. the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
   2. the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust, the trustees and 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; and
   3. the Client will not during the term of the Contract without consent in writing of the Consultant (the Consultant will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
      1. the removal, replacement or retirement of the Client as trustee of the Trust;
      2. any alteration to or variation of the terms of the Trust;
      3. any advancement or distribution of capital of the Trust; or
      4. any resettlement of the trust fund or trust property.

23. General

1. The Consultant and the Client will negotiate in good faith and use their reasonable efforts to settle any dispute that may arise out of, or relate to this Contract, or any breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to attempt to resolve the dispute. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect and proprietary or trade secret right.
2. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
3. These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts in Sydney, New South Wales. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
4. The Consultant may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
5. The Client cannot licence or assign without the written approval of the Consultant.
6. The Consultant 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 the Consultant’s sub-contractors without the authority of the Consultant.
7. The Client agrees that the Consultant may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to 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 the Consultant to provide Products to the Client.
8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to the Consultant, once the parties agree that the Force Majeure event has ceased.
9. Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
10. The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
11. If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.