“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.
“SAP” means Wendy Jane Harder T/A SAP – Sign and Print Solutions, its successors and assigns or any person acting on behalf of and with the authority of Wendy Jane Harder T/A SAP – Sign and Print Solutions.
“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting SAP to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Client, is a reference to each Client jointly and severally; and
if the Client is a partnership, it shall bind each partner jointly and severally; and
if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Client’s executors, administrators, successors and permitted assigns.
“Services” means all Services (including consultation, manufacturing and/or installation services) or Goods supplied by SAP to the Client at the Client’s request from time to time (where the context so permits the terms ‘Services’ or ‘Goods’ shall be interchangeable for the other).
"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.
“Premium Fee” means an additional charge over and above the Contract Price, where a specific lead time is requested by the Client.
“Price” means the Price payable (plus any GST where applicable) for the Services as agreed between SAP and the Client in accordance with clause 6
“GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
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 any Services.
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.
Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with SAP and it has been approved with a credit limit established for the account.
In the event that the supply of Services request exceeds the Clients credit limit and/or the account exceeds the payment terms, SAP reserves the right to refuse delivery.
Any advice, recommendation, information, assistance or service provided by SAP in relation to Services or Goods supplied is given in good faith is based on SAP’s own knowledge and experience and shall be accepted without liability on the part of SAP 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 Services or Goods.
The Client acknowledges and accepts that:
SAP cannot guarantee the condition of pre-existing paintwork on surfaces or other materials to which Services are to be attached and therefore SAP shall not be held liable for any damage that may occur to the paintwork where Services are removed; and
the adhesion of vinyl signs may be impaired where a paint protection coating has been applied. Furthermore, as such paint protections coating are unable to be removed, adhesion failure shall not be deemed to be a defect in this instance; and
should the Client use shelves as storage or place any items thereon outside of the recommendation that SAP has advised, then SAP is not responsible for panels or channels nor screws that loosen overtime, and the Client will be liable for additional costs as per clause 6.2;
where an abnormally short lead time is requested and depending on the complexity and the desired delivery/completion date of the Services, a Premium Fee (which may include additional labour hours and/or alternative Goods) may apply. The Premium Fee will be invoiced in accordance with clause 2.
Once accepted by the Client, SAP’s written quotation shall be deemed to interpret the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, SAP shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Errors and Omissions
The Client acknowledges and accepts that SAP shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by SAP in the formation and/or administration of this Contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by SAP in respect of the Services.
In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of SAP; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
Change in Control
The Client shall give SAP 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 SAP as a result of the Client’s failure to comply with this clause.
Unless otherwise limited as per clause 2 the Client agrees that should the Client introduce any third party to SAP as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services or Goods on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies SAP in writing that said person is no longer the Client’s duly authorised representative).
In the event that the Client’s duly authorised representative as per clause 1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise SAP in writing of the parameters of the limited authority granted to their representative.
The Client specifically acknowledges and accepts that they will be solely liable to SAP for all additional costs incurred by SAP (including the SAP’s profit margin) in providing any Services, Goods, services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).
Price and Payment
At SAP’s sole discretion the Price shall be either:
as indicated on invoices provided by SAP to the Client in respect of Services performed or Goods supplied; or
SAP’s quoted Price (subject to clause 2) which shall be binding upon SAP provided that the Client shall accept SAP’s quotation in writing within thirty (30) days.
SAP reserves the right to change the Price:
if a variation to the Goods which are to be supplied is requested; or
if a variation to the Services originally scheduled (including, any applicable plans or specification changes that incorporate a change of style, type, layout or where additional proofs changes are required to the Services) is requested; or
where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, site surveys, limitations to site access, site conditions being unfavourable for the Services to commence or be completed, availability of machinery or access hire, change in scope of work required, change to methodology and quantities, delays or non-approval in obtaining council or local authority permits, prerequisite work by a third party not being completed, inaccurate measurements, change of design or print colour, poor surface preparation, hidden pipes and wiring, etc.) which are only discovered on commencement of the Services; or
in the event of increases to SAP in the cost of labour, travel related costs and parking, or Goods which are beyond SAP’s control; or
where a quotation is less than one hundred and twenty Australian Dollars (A$120.00) plus GST, SAP reserves the right to charge an administration fee of up to one hundred Australian Dollars (A$100.00) to cover administration and setup costs associated with the Services; and
if any additional site visits are required to finish the Services, as the quoted Price is based upon a single site visit, unless otherwise stated.
Variations will be charged for on the basis of SAP’s quotation, and will be detailed in writing, and shown as variations on SAP’s invoice. The Client shall be required to respond to any variation submitted by SAP within ten (10) working days. Failure to do so will entitle SAP to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
At SAP’s sole discretion a non-refundable deposit may be required.
Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by SAP, which may be:
on completion of the Services; or
by way of progress payments in accordance with SAP’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Goods delivered to the site but not yet installed; or
the date specified on any invoice or other form as being the date for payment; or
by mutual agreement between SAP and the Client; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by SAP.
Payment may be made by cash, electronic/on-line banking, or by any other method as agreed to between the Client and SAP.
SAP may in its discretion allocate any payment received from the Client towards any invoice that SAP determines and may do so at the time of receipt or at any time afterwards. On any default by the Client SAP may re-allocate any payments previously received and allocated. In the absence of any payment allocation by SAP, payment will be deemed to be allocated in such manner as preserves the maximum value of SAP’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
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 SAP nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to SAP an amount equal to any GST SAP must pay for any supply by SAP under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Provision of the Services
Subject to clause 2 it is SAP’s responsibility to ensure that the Services start as soon as it is reasonably possible.
The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that SAP claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond SAP’s control, including but not limited to any failure by the Client to:
make a selection; or
have the site ready for the Services; or
notify SAP that the site is ready.
At SAP’s sole discretion, the cost of delivery is included in the Price.
SAP may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time specified by SAP for delivery of the Services is an estimate only and SAP 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 SAP is unable to supply the Services as agreed solely due to any action or inaction of the Client, then SAP shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date, and/or for storage of the Goods.
When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra Services or cost caused by any variation by the Client of his original instructions or by the manuscript copy being, in SAP’s opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described or during the course of the project that the production or installation method, drawings and or Goods need to be changed due to incorrect misleading or miscommunicated information, then the cost of such variations may be charged to the Client and shown as extras on the invoice.
All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.
Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the Services.
If SAP retains ownership of the Goods under clause 11 then:
where SAP is supplying Goods only, all risk for the Goods shall immediately pass to the Client on delivery and the Client must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either:
the Client or the Client’s nominated carrier takes possession of the Goods at SAP’s address; or
the Goods are delivered by SAP or SAP’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
where SAP is to both supply and install Goods then SAP shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.
Notwithstanding the provisions of clause 1 if the Client specifically requests SAP to leave Goods outside SAP’s premises for collection or to deliver the Goods to an unattended location then such Goods shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Client’s expense.
SAP shall be under no liability whatever to the Client for any variation (beyond reasonable control of SAP) in colours between the approved prototype and the finished Services.
Whilst every care is taken by SAP to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the Services. SAP shall be under no liability whatever for any errors not corrected by the Client in the final proof reading.
SAP is under no obligation to provide samples of Services ordered other than by virtual (computerised) sample. Whilst every effort will be taken by SAP to match virtual colours with physical colours, SAP will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client this will be charged for as a variation to the Price as per clause 6.2 above.
While every effort will be taken by SAP to match colours, SAP will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
SAP shall not be held liable for inks wearing off through general wear and tear.
In the case of property and Goods left with SAP without specific instructions, SAP shall be free to dispose of them at the end of twelve months after receiving them and to accept and retain any proceeds gained from such disposal to cover SAP’s costs in holding and handling such items.
Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client which is deemed necessary by SAP to ensure correctly finished Work shall be invoiced as an extra.
It is the intention of SAP and agreed by the Client that it shall be the responsibility of the Client to provide and erect (where in SAP’s opinion it is deemed necessary) all scaffolding required to enable installation of the Services. It is also agreed that all scaffolding erected will meet all applicable safety standards and that any persons erecting the scaffolding will be suitably trained or certified in the scaffoldings safe and proper erection.
It is further agreed that SAP is not responsible removal of rubbish from or clean up of the site. This is the responsibility of the Client or the Client’s agent.
Accuracy of Client’s Plans
The plans, specifications (including CAD plans) and other information provided by the Client to SAP are accurate. The Client acknowledges and agrees that in the event that any plans, specifications (including CAD plans) or information provided by the Client is inaccurate:
SAP accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information;
SAP is entitled to suspend or terminate the supply of Goods or Services to the Client if there is a material change to the scope of Services as a result of inaccurate plans, specifications or other information;
SAP will not be liable to the Client for any loss or damage the Client suffers because SAP has exercised its rights under this clause.
The Client shall ensure that SAP has clear and free access to the site at all times to enable them to undertake the Services. SAP shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of SAP.
SAP and the Client agree that ownership of the Goods shall not pass until:
the Client has paid SAP all amounts owing to SAP; and
the Client has met all of its other obligations to SAP.
Receipt by SAP of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 1:
the Client is only a bailee of the Goods and unless the Goods have become fixtures must return the Goods to SAP on request;
the Client holds the benefit of the Client’s insurance of the Goods on trust for SAP and must pay to SAP the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
the production of these terms and conditions by SAP shall be sufficient evidence of SAP’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with SAP to make further enquiries;
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 SAP and must pay or deliver the proceeds to SAP on demand;
the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of SAP and must sell, dispose of or return the resulting product to SAP as it so directs;
unless the Goods have become fixtures the Client irrevocably authorises SAP to enter any premises where SAP believes the Goods are kept and recover possession of the Goods;
SAP may recover possession of any Goods in transit whether or not delivery has occurred;
the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of SAP;
SAP may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to SAP for Services – that have previously been supplied and that will be supplied in the future by SAP to the Client.
The Client undertakes to:
promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which SAP may reasonably require to:
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 3(a)(i) or 12.3(a)(ii);
indemnify, and upon demand reimburse, SAP for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
not register a financing change statement in respect of a security interest without the prior written consent of SAP;
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 SAP;
immediately advise SAP 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.
SAP and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by SAP, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
The Client shall unconditionally ratify any actions taken by SAP under clauses 3 to 12.5.
Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of SAP agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies SAP from and against all SAP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SAP’s rights under this clause.
The Client irrevocably appoints SAP and each director of SAP as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Client must inspect all Goods on delivery (or the Services on completion) and must within two (2) days of delivery notify SAP 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/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow SAP to inspect the Goods or to review the Services provided.
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).
SAP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, SAP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Services. SAP’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, SAP’s liability is limited to the extent permitted by section 64A of Schedule 2.
If SAP is required to replace any Goods under this clause or the CCA, but is unable to do so, SAP may refund any money the Client has paid for the Goods.
If SAP is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then SAP 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 and Goods which have been provided to the Client which were not defective.
Subject to this clause 14, returns will only be accepted provided that:
the Client has complied with the provisions of clause 1; and
SAP has agreed that the Goods are defective; and
the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
the Goods are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 1 to 14.8 but subject to the CCA, SAP shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Client failing to properly maintain or store any Goods;
the Client using the Goods for any purpose other than that for which they were designed;
the Client continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
interference with the Services by the Client or any third party without SAP’s prior approval;
the Client failing to follow any instructions or guidelines provided by SAP;
fair wear and tear, any accident, or act of God.
In the case of second hand Material, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by SAP 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 SAP has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 10.
Notwithstanding anything contained in this clause if SAP is required by a law to accept a return then SAP will only accept a return on the conditions imposed by that law.
Subject to clause 1, customised, or non-stocklist items or Goods made or ordered to the Client’s specifications are not acceptable for credit or return.
Where SAP has designed, drawn, written plans or a schedule of Services, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in SAP, and shall only be used by the Client at SAP’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of SAP.
The Client warrants that all designs, specifications or instructions given to SAP will not cause SAP to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify SAP against any action taken by a third party against SAP in respect of any such infringement.
The Client agrees that SAP may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which SAP has created for the Client.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at SAP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes SAP any money the Client shall indemnify SAP from and against all costs and disbursements incurred by SAP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SAP’s contract default fee, and bank dishonour fees).
Further to any other rights or remedies SAP may have under this Contract, if a Client has made payment to SAP, 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 SAP under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
Without prejudice to SAP’s other remedies at law SAP shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SAP shall, whether or not due for payment, become immediately payable if:
any money payable to SAP becomes overdue, or in SAP’s opinion the Client will be unable to make a payment when it falls due;
the Client has exceeded any applicable credit limit provided by SAP;
the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Without prejudice to any other remedies SAP may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions SAP may suspend or terminate the supply of Services to the Client. SAP will not be liable to the Client for any loss or damage the Client suffers because SAP has exercised its rights under this clause.
SAP may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice SAP shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to SAP for Services already performed. SAP shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels the delivery of Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by SAP as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for products 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.
All emails, documents, images or other recorded information held or used by SAP is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. SAP 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”). SAP acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by SAP that may result in serious harm to the Client, SAP 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.
The Client agrees for SAP 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 SAP.
The Client agrees that SAP may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
to assess an application by the Client; and/or
to notify other credit providers of a default by the Client; and/or
to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
The Client consents to SAP being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by SAP for the following purposes (and for other agreed purposes or required by):
the provision of Services; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the collection of amounts outstanding in relation to the Services.
SAP may give information about the Client to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about the Client including credit history.
The information given to the CRB may include:
Personal Information as outlined in 3 above;
name of the credit provider and that SAP is a current credit provider to the Client;
whether the credit provider is a licensee;
type of consumer credit;
details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and SAP has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
information that, in the opinion of SAP, the Client has committed a serious credit infringement;
advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from SAP:
a copy of the Personal Information about the Client retained by SAP and the right to request that SAP correct any incorrect Personal Information; and
that SAP does not disclose any Personal Information about the Client for the purpose of direct marketing.
SAP will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting SAP via e-mail. SAP 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.
Service of Notices
Any written notice given under this Contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this Contract;
by sending it by registered post to the address of the other party as stated in this Contract;
if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
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 SAP may have notice of the Trust, the Client covenants with SAP as follows:
the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
the Client will not without consent in writing of SAP (SAP will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
the removal, replacement or retirement of the Client as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust; or
any resettlement of the trust property.
Compliance with Laws
The Client and SAP shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
The Client agrees that the site will comply with any occupational health and safety (OHS) laws and any other relevant safety standards or legislation.
If a dispute arises between the parties to this Contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which SAP has its principal place of business, and are subject to the jurisdiction of the Melbourne Courts in that state.
Subject to clause 14, SAP 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 SAP of these terms and conditions (alternatively SAP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
SAP may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
The Client cannot licence or assign without the written approval of SAP.
SAP 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 SAP’s sub-contractors without the authority of SAP.
The Client agrees that SAP 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 SAP to provide Services to the Client.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.