Terms and Conditions

1. Definitions
   • “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Service Provider 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.
   • "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.
   • “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.
   • “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 Service Provider’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.
   • “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
   • “Incidental Items” means any goods, documents, designs, drawings, or materials supplied, consumed, created or deposited incidentally by Service Provider in the course of it conducting, or supplying to the Client, any Services.
   • “Price” means the Price payable (plus any GST where applicable) for the Services as agreed between Service Provider and the Client in accordance with clause 6 of this Contract.
   • “Service Provider” means Mr Washy Australia Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Mr Washy Australia Pty Ltd.
   • “Services” mean all Services supplied by Service Provider to the Client at the Client’s request from time to time.

2. Acceptance
   • The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Service Provider.
   • 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 Service Provider and it has been approved with a credit limit established for the account.
   • In the event that the supply of Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Service Provider reserves the right to refuse delivery.
   • Where the Client is a tenant (and therefore not the owner of the site where Services are to be provided) then the Client warrants that the Client has obtained the full consent of the owner for the Service Provider to provide the Services at the owner’s site. The Client acknowledges and agrees that they shall:
     • upon request from the Service Provider provide evidence that they have such consent; and
     • be personally liable for full payment of the Price for all Services provided under this Contract and to indemnify the Service Provider against any claim made by the owner of the site (howsoever arising) in relation to the provision of any Services by the Service Provider, except where such claim has arisen because of the negligence of the Service Provider when providing the Services.
   • 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.

3. Authorised Representatives
   • The Client acknowledges that the Service Provider shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to the Service Provider, that person shall have the full authority of the Client to order any Services, and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to the Service Provider for all additional costs incurred by the Service Provider (including the Service Provider’s profit margin) in providing any Services, or variation/s requested thereto by the Client’s duly authorised representative.

4. Errors and Omissions
   • The Client acknowledges and accepts that Service Provider 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 Service Provider in the formation and/or administration of this Contract; and/or
     • contained in/omitted from any literature (hard copy and/or electronic) supplied by Service Provider 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 Service Provider; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
   • In circumstances where the Client is required to place an order for Services, 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 Services (whether they are made to order Incidental Items or not) ("Client Error"). The Client must pay for all Services it orders from Service Provider notwithstanding that such Services suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take delivery of such Services. Service Provider is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

5. Change in Control
   • The Client shall give Service Provider 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 Service Provider as a result of the Client’s failure to comply with this clause.

6. Price and Payment
   • At Service Provider’s sole discretion, the Price shall be either:
     • as indicated on any invoice provided by Service Provider to the Client; or
     • the Price as at the date of delivery of the Services according to Service Provider’s current price list; or
     • Service Provider’s quoted Price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
   • Service Provider reserves the right to change the Price if:
     • a variation to the Service Provider’s quotation (which is based on the existing condition (including cleanliness) and size of the site, as stated by the Client, or at the time of inspection by the Service Provider) is requested; or
     • additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limited access to the site, health hazards/safety considerations (such as the discovery of asbestos or other toxic materials); prerequisite work not being completed by the Client or any third party, etc.) which are only discovered on the commencement of the Services; or
     • in the event the site is not as was stated by the Client, or the Service Provider suffers interruptions from any third party occupying the site which causes delays; or
     • in the event of increases to the Service Provider in the cost of labour or materials which are beyond the Service Provider’s control.
   • Furthermore, at the Service Provider’s sole discretion:
     • a minimum charge shall be applicable to the Services;
     • a surcharge shall be applicable for Services scheduled on weekends or public holidays; and
     • an additional fee will be charged to the Client:
       • if the site has no power;
       • where the Service Provider is required to collect keys to the site from a real estate contractor;
       • where the site is not located on the ground floor (e.g., for apartments); or
       • for the removal of chewing gum and blu tack.
     • Variations will be charged for on the basis of Service Provider’s quotation, and will be detailed in writing, and shown as variations on Service Provider’s invoice. The Client shall be required to respond to any variation submitted by Service Provider within ten (10) working days. Failure to do so will entitle Service Provider 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 the Service Provider’s sole discretion, a non-refundable deposit may be required, and the following conditions may apply:
       • up to twenty-five percent (25%) of the contract Price is payable upfront ; and
       • the balance payable on completion of the project.
     • Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Service Provider, which may be:
       • on or before delivery of the Services; or
       • the date specified on any invoice or other form as being the date for payment; or
       • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Service Provider.
     • Payment may be made by cash, electronic/on-line banking, EFTPOS, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Service Provider.
     • Service Provider may in its discretion allocate any payment received from the Client towards any invoice that Service Provider determines and may do so at the time of receipt or at any time afterwards.
     • 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 Service Provider 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 Service Provider in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as Service Provider investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in Service Provider placing the Client’s account into default and subject to default interest in accordance with clause 1.
     • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Service Provider an amount equal to any GST Service Provider must pay for any supply by Service Provider under this or any other agreement for providing Service Provider’s Services. 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
   • At the Service Provider’s sole discretion delivery of the Services shall take place when the Services are supplied to the Client at the Client’s nominated address.
   • Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this Contract.
   • The Services shall be provided within the Service Provider’s normal trading hours. Where the Client requests the Service Provider to provide Services outside of these hours the Client shall be charged in accordance with the Service Provider’s current overtime rates, which are available on request.
   • It shall be the Client’s responsibility to ensure any requested commencement / completion date is realistic and truthful in order for the Service Provider to provide the Services by the requested deadline. The Service Provider shall not be liable for any loss suffered by the Client where any requested date/s is inaccurate, unattainable, or unreasonable.
   • Any time specified by the Service Provider for delivery of the Services is an estimate only and the Service Provider 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 Service Provider is unable to supply the Services as agreed solely due to any action or inaction of the Client then the Service Provider shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
   • In the event that parking or access to the site is limited, and the Service Provider is required to pay for parking (e.g., in a city location), then the Service Provider reserves the right to on-charge the Client for such costs.
   • The Service Provider shall not be responsible for the:
     • disposal of health risk items, however, the removal of these items by the Service Provider may (at the sole discretion of the Service Provider) be charged to the Client in addition to the Price; and
     • relocation of furniture or equipment heavier than fifteen kilograms (15kgs), as these types of activities pose a danger of injury or could damage property and fittings. Any lifting and movement of furniture, appliances, or equipment in excess of fifteen kilograms (15kgs) must be arranged and conducted by the Client prior to the commencement of the Services.

8. Risk
   • Irrespective of whether Service Provider retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as Service Provider may repossess the Incidental Items in accordance with clause 3(f). The Client must insure all Incidental Items on or before delivery.
   • Service Provider reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause 1.
   • The Service Provider shall be entitled to rely on the accuracy of any plans, specifications, measurements, and other information provided by the client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Service Provider accepts no responsibility for any loss, damage or costs however resulting from these inaccurate plans, specifications, measurements, specifications or other information.
   • The Service Provider’s Services may at times include the use of corrosive products which may have a detrimental affect on certain exposed surfaces, including, but not limited to, surfaces containing zinc. Where such surfaces are in close proximity to the areas to be serviced, the Service Provider requires written notification of such. In addition, it is required that the Client will provide visual clarification to the Service Provider on the location of such surfaces prior to commencement of the Services. The Service Provider will accept no liability for damage if no such notification is received.
   • Where the surface to be serviced is of brick construction, the Service Provider will not be responsible for any detrimental impact on such surface where the Client or third party contractor has failed to adequately prepare the surface for the Service Provider. This may include the failure to remove excess grout and or leaving excess grout on the surface.
   • The Service Provider’s equipment is dustless; however, during the process some fine dust may be generated and settle throughout the site. Cleaning of the site is not included.
   • Whilst the Service Provider will take all due care to avoid contamination of the finished surface, the Service Provider accepts no responsibility for contamination by other trades people or natural contaminates such as dust, insects or hair which may be present at the site.
   • The Client acknowledges that:
     • the Service Provider cannot guarantee that existing stains within the concrete will be removed by the preparation process;
     • the Service Provider has no control over added colours once the product has touched the concrete;
     • concrete is a porous material and as a consequence the Service Provider cannot be held responsible for holes and pinholes, however numerous, that appear on the surface after completion of the Services;
     • due to the constituency of concrete, scratch marks may appear on the surface following the completion of the Services. While the Service Provider will exercise due care and diligence to eliminate or minimize such markings, the Client indemnifies the Service Provider against all liability howsoever arising as a result.

9. Client’s Responsibilities
   • The Client acknowledges and agrees that it is their responsibility to:
     • report any existing damage to the Service Provider prior to the commencement of the Services. The Service Provider cannot be held responsible for any existing damage, wear and tear or stains that cannot be removed using the Service Provider’s cleaning methods;
     • ensure that the Service Provider has clear and free access to the site at all times to enable them to provide the Services. The Service Provider shall not be liable for any loss or damage to the site, unless due to the negligence of the Service Provider. In the event of a lock-out, or where the Service Provider is turned away or otherwise unable to enter the site due to any action, or inaction of the Client, the Client will be required to pay the full Price for the Services;
     • ensure that the site is reasonably ready for the Service Provider to commence the Services, with minimal tradespersons and works in progress;
     • have all areas clean and clear to enable the Services to be provided in accordance with any specified schedule;
     • secure or remove any fragile, delicate, breakable, or valuable items, including cash, jewellery, works of art or antiques from those areas that require the Services. The Service Provider is unable to accept liability for items of this type that have not been reasonably secured by the Client;
     • fulfil any special conditions / requirements that may affect the Service Provider providing the Services at the site (including, but not limited to, health and safety equipment and/or work site inductions); and
     • provide the Service Provider with an adequate free source of water and power at all times to enable the Service Provider to provide the Services.
   • In the event provision of the Services is delayed due to inadequate access to the site, or water and power facilities, then the Service Provider reserves the right to charge a reasonable fee for re-providing the Services at a later time and date in accordance with clause 2

10. Compliance with Laws
    • The Client and Service Provider shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the

Modern Slavery

• For the purposes of clauses 2 to 10.7:
  • “Act” means the Modern Slavery Act 2018 (cth)
  • “Modern Slavery”, “Modern Slavery Statement” and “Reporting Entity” have the meanings given by the Act.
• If the Client is a Reporting Entity, it shall comply with all of its obligations under the Act.
• Whether the Client is a Reporting Entity or not, the Client shall:
  • use reasonable endeavours to identify, assess and address risks of Modern Slavery practices in its operations and supply chains;
  • use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes of the Contract have undertaken suitable training to identify and report Modern Slavery;
  • use its reasonable endeavours to ensure that if at any time the Client becomes aware of Modern Slavery practices in its operations and supply chains, the Client must as soon as reasonably practicable take all reasonable steps to address or remove these practices;
  • provide to Service Provider a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and
  • within seven (7) days of Service Provider’s request (or such longer period as Service Provider agrees), provide to Service Provider any information or assistance reasonable requested by Service Provider;
    • concerning the Client’s compliance with the Act;
    • concerning the Client’s operations and supply chains;
    • to enable Service Provider to prepare a Modern Slavery Statement or otherwise comply with the Act; or
    • to enable Service Provider to assess and address risks of Modern Slavery practices in its operations and supply chains.
  • The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach by way of remediation and Service Provider will be able to terminate the Contract for any breach by the Client.
  • The Client warrants that any information supplied to Service Provider is true and accurate and may be relied upon for the purposes of the Act.
  • The Client shall indemnify Service Provider against any loss or liability suffered by Service Provider as a result of the Client’s breach of this clause 10.

11. Title to Incidental Items
    • Service Provider and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
      • the Client has paid Service Provider all amounts owing for the Services; and
      • the Client has met all other obligations due by the Client to Service Provider in respect of all Contracts between Service Provider and the Client.
    • Receipt by Service Provider 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 and until then Service Provider’s ownership in the Incidental Items or rights in respect of the Services shall continue.
    • It is further agreed that, until ownership of the Incidental Items passes to the Client in accordance with clause 1:
      • the Client is only a bailee of the Incidental Items and must return the Incidental Items to Service Provider immediately upon request by Service Provider;
      • the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for Service Provider and must pay to Service Provider the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
      • the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for Service Provider and must pay or deliver the proceeds to Service Provider on demand;
      • the Client should not convert or process the Incidental Items 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 Service Provider and must dispose of or return the resulting product to Service Provider as Service Provider so directs;
      • the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of Service Provider;
      • the Client irrevocably authorises Service Provider to enter any premises where Service Provider believes the Incidental Items are kept and recover possession of the Incidental Items.

12. 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 Incidental Items previously supplied by Service Provider to the Client;
      • all Incidental Items will be supplied in the future by Service Provider to the Client and the proceeds from such Incidental Items; and
      • all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to Service Provider for Services – that have previously been provided and that will be provided in the future by Service Provider 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 Service Provider 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, Service Provider 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 Incidental Items charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of Service Provider;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items or the proceeds of such Incidental Items in favour of a third party without the prior written consent of Service Provider.
    • Service Provider and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by Service Provider, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client must unconditionally ratify any actions taken by Service Provider 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.

13. Security and Charge
    • In consideration of Service Provider agreeing to supply Services, 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, and the Client grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering Service Provider’s security interest over the Client on the PPSA, 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 Service Provider from and against all Service Provider’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Service Provider’s rights under this clause.
    • The Client irrevocably appoints Service Provider and each director of Service Provider 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.

14. Defects, Warranties and the Competition and Consumer Act 2010 (“CCA”)
    • The Client must inspect Service Provider’s Services on completion of the Services and must within seven (7) days notify Service Provider in writing of any evident defect in the Services or Incidental Items provided (including Service Provider’s workmanship) or of any other failure by Service Provider to comply with the description of, or quote for, the Services which Service Provider was to supply. The Client must notify any other alleged defect in Service Provider’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Service Provider to review the Services or Incidental Items that were 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).
    • Service Provider 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, Service Provider makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Service Provider’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, Service Provider’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If Service Provider 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 Service Provider 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 Incidental Items which have been provided to the Client which were not defective.
    • If the Client is not a consumer within the meaning of the CCA, Service Provider’s liability for any defective Services or Incidental Items is:
      • limited to the value of any express warranty or warranty card provided to the Client by Service Provider at Service Provider’s sole discretion;
      • otherwise negated absolutely.
    • Notwithstanding clauses 1 to 14.7 but subject to the CCA, Service Provider 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 Incidental Items;
      • the Client using the Incidental Items for any purpose other than that for which they were designed;
      • the Client continuing to use any Incidental Items 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 Service Provider’s prior approval;
      • the Client failing to follow any instructions or guidelines provided by Service Provider;
      • fair wear and tear, any accident, or act of God.

15. Intellectual Property
    • Where Service Provider has designed, drawn or developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of Service Provider. Under no circumstances may such designs, drawings and documents be used without the express written approval of Service Provider.

16. 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 Service Provider’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes Service Provider any money, the Client shall indemnify Service Provider from and against all costs and disbursements:
      • incurred; and/or
      • which would be incurred and/or
      • for which by the Client would be liable;

in regard to legal costs on a solicitor and own client basis, internal administration fees, Service Provider’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.

• Further to any other rights or remedies Service Provider may have under this Contract, if a Client has made payment to Service Provider, 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 Service Provider 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 Service Provider’s other remedies at law Service Provider shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Service Provider shall, whether or not due for payment, become immediately payable if:
  • any money payable to Service Provider becomes overdue, or in Service Provider’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 Service Provider;
  • the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
  • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

17. Cancellation
    • Without prejudice to any other remedies Service Provider may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Service Provider may suspend or terminate the supply of Services to the Client. Service Provider will not be liable to the Client for any loss or damage the Client suffers because Service Provider has exercised its rights under this clause.
    • Service Provider 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 Service Provider shall repay to the Client any money paid by the Client for the Services. Service Provider shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by Service Provider as a direct result of the cancellation (including, but not limited to, any loss of profits).

18. Privacy Policy
    • All emails, documents, images or other recorded information held or used by Service Provider is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. Service Provider 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”). Service Provider acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Service Provider that may result in serious harm to the Client, Service Provider 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.
    • Notwithstanding clause 1, privacy limitations will extend to Service Provider in respect of Cookies where the Client utilises Service Provider’s website to make enquiries. Service Provider 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:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to Service Provider when Service Provider sends an email to the Client, so Service Provider may collect and review that information (“collectively Personal Information”)

If the Client consents to Service Provider’s use of Cookies on Service Provider’s website and later wishes to withdraw that consent, the Client may manage and control Service Provider’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the website.

• The Client agrees for Service Provider 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 Service Provider.
• The Client agrees that Service Provider 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 Service Provider being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
• The Client agrees that personal credit information provided may be used and retained by Service Provider 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.
• Service Provider 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 Service Provider 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 (provided Service Provider 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 Service Provider has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
  • information that, in the opinion of Service Provider, 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 Service Provider:
  • a copy of the Personal Information about the Client retained by Service Provider and the right to request that Service Provider correct any incorrect Personal Information; and
  • that Service Provider does not disclose any Personal Information about the Client for the purpose of direct marketing.
• Service Provider 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 Service Provider via e-mail. Service Provider will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.

19. 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.

20. Trusts
    • If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Service Provider may have notice of the Trust, the Client covenants with Service Provider 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 Service Provider (Service Provider 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.

21. Building and Construction Industry Security of Payment Act 2002
    • At the Service Provider’s sole discretion, if there are any disputes or claims for unpaid Incidental Items and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
    • Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

22. General
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • These terms and conditions and any Contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts in that state.
    • Subject to clause 14, Service Provider 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 Service Provider of these terms and conditions (alternatively Service Provider’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
    • Service Provider 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 Service Provider.
    • Service Provider 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 Service Provider’s sub-contractors without the authority of Service Provider.
    • The Client agrees that Service Provider 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 Service Provider 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, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments, including but not limited to, any Government imposed border lockdowns, 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 Service Provider.
    • 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.
    • 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.