1.Definitions
1.1 “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.
1.2 “HYCO” means Kay Dee Trading Pty Ltd trading as Hyco Fire Systems, its successors and assigns or any person acting on behalf of and with the authority of Hyco Fire Systems.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting HYCO to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by HYCO to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “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.
1.6 “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 ordering from the 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 ordering Goods via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between HYCO and the Client in accordance with clause 6 below.
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Goods.
2.2 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.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with HYCO and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods request exceeds the Clients credit limit and/or the account exceeds the payment terms, HYCO reserves the right to refuse Delivery.
2.6 The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, HYCO reserves the right to vary the Price with alternative Goods as per clause 5.2.
2.7 Any advice, recommendation, information, assistance or service provided by HYCO in relation to Goods or Services supplied is given in good faith, is based on HYCO’ own knowledge and experience and shall be accepted without liability on the part of HYCO and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
2.8 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 (NSW), the Electronic Communications Act 2000 (SA), the Electronic Transactions Act 2001 (ACT), the Electronic Transactions (Victoria) Act 2000, the Electronic Transactions (Northern Territory) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (TAS), Section 10 of the Electronic Transactions Act 2011 (WA), Section 226 of the Contract Commercial Law Act 2017 (NZ) (whichever is applicable), or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Authorised Representatives
3.1 The Client acknowledges that HYCO shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to HYCO, that person shall have the full authority of the Client to order any Services, Goods and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to HYCO for all additional costs incurred by HYCO (including HYCO’s profit margin) in providing any Services, Goods or variation/s requested thereto by the Customer’s duly authorised representative.
4. Errors and Omissions
4.1 The Client acknowledges and accepts that HYCO shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by HYCO in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by HYCO in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of HYCO; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Client shall give HYCO 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 HYCO as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At HYCO’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by HYCO to the Client; or
(b) HYCO’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.
6.2 HYCO reserves the right to change the Price:
(a) if during the course of the Services, the Goods cease to be available from HYCO’s third party suppliers, then HYCO reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
(b) in the event of increases to HYCO in the cost of labour or materials (including but not limited to, overseas transactions that may increase, as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond HYCO’s control.
6.3 Variations will be charged for on the basis of HYCO’s quotation, and will be detailed in writing, and shown as variations on HYCO’s invoice. The Client shall be required to respond to any variation submitted by HYCO within ten (10) working days. Failure to do so will entitle HYCO 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.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by HYCO, which may be:
(a) on or before delivery of the Goods;
(b) by way of instalments/progress payments in accordance with HYCO’s payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by HYCO.
6.5 Payment may be made by cheque, 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 HYCO.
6.6 HYCO may in its discretion allocate any payment received from the Client towards any invoice that HYCO determines and may do so at the time of receipt or at any time afterwards. On any default by the Client HYCO may re-allocate any payments previously received and allocated. In the absence of any payment allocation by HYCO, payment will be deemed to be allocated in such manner as preserves the maximum value of HYCO’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by HYCO nor to withhold payment of any invoice because part of that invoice is in dispute.
6.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to HYCO an amount equal to any GST HYCO must pay for any supply by HYCO under this or any other agreement 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.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at HYCO’s address; or
(b) HYCO (or HYCO’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.2 At HYCO’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
7.3 HYCO 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.
7.4 Any time specified by HYCO for Delivery of the Goods is an estimate only. The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. HYCO will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. In the event that the Client is unable to take Delivery of the Goods as arranged then HYCO shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Risk
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, HYCO is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by HYCO is sufficient evidence of HYCO’s rights to receive the insurance proceeds without the need for any person dealing with HYCO to make further enquiries.
8.3 If the Client requests HYCO to leave Goods outside HYCO’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
8.4 The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
8.5 The Client acknowledges that while HYCO may have provided information or figures to the Client regarding the performance of the Goods, that HYCO has given these in good faith, and are based on industry prescribed estimates.
9. Access
9.1 The Client shall ensure that HYCO has clear and free access to effect delivery of the Goods. HYCO shall not be liable for any loss or damage to the Client’s premises (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of HYCO.
10. Dimensions, Plans and Specifications
10.1 All customary building industry tolerances shall apply to the dimensions and measurements of the Goods, unless HYCO and the Client agree otherwise in writing.
10.2 HYCO shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client.
10.3 If the giving of an estimate or quotation for the supply of Goods involves HYCO estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of HYCO’s estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
10.4 Should the Client require any changes to HYCO’s estimated measurements and quantities, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.
11. Compliance With Laws
11.1 The Client and HYCO 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 or any other relevant safety standards or legislation pertaining to the Services.
11.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services and/or Goods (including but not limited to, any taxes, duties, levies, customs and import duties (where applicable) etc.).
12. Title
12.1 HYCO and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid HYCO all amounts owing to HYCO; and
(b) the Client has met all of its other obligations to HYCO.
12.2 Receipt by HYCO 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.
12.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Goods and must return the Goods to HYCO on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for HYCO and must pay to HYCO the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for HYCO and must pay or deliver the proceeds to HYCO on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of HYCO and must sell, dispose of or return the resulting product to HYCO as it so directs;
(e) the Client irrevocably authorises HYCO to enter any premises where HYCO believes the Goods are kept and recover possession of the Goods;
(f) HYCO may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of HYCO;
(h) HYCO may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to HYCO for Services – that have previously been supplied and that will be supplied in the future by HYCO to the Client.
13.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-todate in all respects) which HYCO may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, HYCO 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;
(c) not register a financing change statement in respect of a security interest without the prior written consent of HYCO;
(d) 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 HYCO;
(e) immediately advise HYCO 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.
13.4 HYCO 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.
13.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by HYCO, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Client must unconditionally ratify any actions taken by HYCO under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of HYCO 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).
14.2 The Client indemnifies HYCO from and against all HYCO’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HYCO’s rights under this clause.
14.3 The Client irrevocably appoints HYCO and each director of HYCO as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Client must inspect the Goods on Delivery and must within seven (7) days of Delivery notify HYCO 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 HYCO to inspect the Goods.
15.2 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 (NonExcluded Guarantees).
15.3 HYCO acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, HYCO makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. HYCO’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Client is a consumer within the meaning of the CCA, HYCO’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If HYCO is required to replace the Goods under this clause or the CCA, but is unable to do so, HYCO may refund any money the Client has paid for the Goods.
15.7 If the Client is not a consumer within the meaning of the CCA, HYCO’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by HYCO at HYCO’s sole discretion;
(b) limited to any warranty to which HYCO is entitled, if HYCO did not manufacture the Goods;
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(b) HYCO has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, HYCO shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) 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;
(d) the Client failing to follow any instructions or guidelines provided by HYCO;
(e) fair wear and tear, any accident, or act of God.
15.10 HYCO may in its absolute discretion accept non-defective Goods for return in which case HYCO may require the Client to pay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
15.11 Notwithstanding anything contained in this clause if HYCO is required by a law to accept a return then HYCO will only accept a return on the conditions imposed by that law.
15.12 Subject to clause 15.1, customised, or non-stocklist items or Goods made or ordered to the Client’s specifications are not acceptable for credit or return.
16. Intellectual Property
16.1 The Client warrants that all designs, specifications or instructions given to HYCO will not cause HYCO to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify HYCO against any action taken by a third party against HYCO in respect of any such infringement.
17. Default and Consequences of Default
17.1 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 HYCO’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Client owes HYCO any money the Client shall indemnify HYCO from and against all costs and disbursements incurred by HYCO in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HYCO’s contract default fee, and bank dishonour fees).
17.3 Further to any other rights or remedies HYCO may have under this Contract, if a Client has made payment to HYCO, 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 HYCO under this clause 17 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.
17.4 Without prejudice to HYCO’s other remedies at law HYCO shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to HYCO shall, whether or not due for payment, become immediately payable if:
(a) any money payable to HYCO becomes overdue, or in HYCO’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by HYCO;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
18. Cancellation
18.1 Without prejudice to any other remedies HYCO may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions HYCO may suspend or terminate the supply of Goods to the Client. HYCO will not be liable to the Client for any loss or damage the Client suffers because HYCO has exercised its rights under this clause.
18.2 HYCO 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 HYCO shall repay to the Client any money paid by the Client for the Goods. HYCO shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 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 HYCO as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4 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.
19. Other Applicable Legislation
19.1 At HYCO’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 Industry Fairness (Security of Payment) Act 2017 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory of Australia), 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.
19.2 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
19.1 (each as applicable), except to the extent permitted by the Act where applicable.
20. Privacy Policy
20.1 All emails, documents, images or other recorded information held or used by HYCO is Personal Information, as defined and referred to in clause 0, and therefore considered Confidential Information. HYCO 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”). HYCO acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by HYCO that may result in serious harm to the Client, HYCO 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.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to HYCO in respect of Cookies where transactions for purchases/orders transpire directly from HYCO’s website. HYCO 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:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to HYCO when HYCO sends an email to the Client, so HYCO may collect and review that information (“collectively Personal Information”) In order to enable / disable the collection of Personal Information by way of Cookies, 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 proceeding with a purchase/order via HYCO’s website.
20.3 The Client agrees for HYCO 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 HYCO.
20.4 The Client agrees that HYCO may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
20.5 The Client consents to HYCO being given a consumer credit report to collect overdue payment on commercial credit.
20.6 The Client agrees that personal credit information provided may be used and retained by HYCO for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
20.7 HYCO may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
20.8 The information given to the CRB may include:
(a) Personal Information as outlined in 0 above;
(b) name of the credit provider and that HYCO is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and HYCO has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of HYCO, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
20.9 The Client shall have the right to request (by e-mail) from HYCO:
(a) a copy of the Personal Information about the Client retained by HYCO and the right to request that HYCO correct any incorrect Personal Information; and
(b) that HYCO does not disclose any Personal Information about the Client for the purpose of direct marketing.
20.10 HYCO 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.
20.11 The Client can make a privacy complaint by contacting HYCO via email. HYCO will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
21. Unpaid Seller’s Rights
21.1 Where the Client has left any item with HYCO for repair, modification, exchange or for HYCO to perform any other service in relation to the item and HYCO has not received or been tendered the whole of any monies owing to it by the Client, HYCO shall have, until all monies owing to HYCO are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
21.2 The lien of HYCO shall continue despite the commencement of proceedings, or judgment for any monies owing to HYCO having been obtained against the Client.
22. Service of Notices
22.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
22.2 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.
23. Trusts
23.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not HYCO may have notice of the Trust, the Client covenants with HYCO as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of HYCO (HYCO will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
24. General
24.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state and/or territory in which the Goods and/or Services were provided by HYCO 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 Bankstown Courts of New South Wales in which HYCO has its principal place of business.
24.3 Subject to clause 15, HYCO 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 HYCO of these terms and conditions (alternatively HYCO’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.4 HYCO may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
24.5 The Client cannot licence or assign without the written approval of HYCO.
24.6 HYCO 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 HYCO’s sub-contractors without the authority of HYCO.
24.7 The Client agrees that HYCO 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 HYCO to provide Goods to the Client.
24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
24.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
