1.1 “Wayelec” means Wayelec Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Wayelec Pty Ltd.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Wayelec to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Goods” means all Goods or Services supplied by Wayelec to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Wayelec and the Client in accordance with clause 5 below.
1.5 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and Wayelec.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.4 In the event that Wayelec is required to provide the Services urgently, that may require Wayelec’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then Wayelec reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between Wayelec and the Client.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that Wayelec shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Wayelec in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Wayelec in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Wayelec; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give Wayelec not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Wayelec as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At Wayelec’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Wayelec to the Client; or
(b) Wayelec’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Wayelec reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, availability of Goods, limitations to accessing the site, safety considerations, discovery of asbestos, excavation, prerequisite work by any third party not being completed, obscured building defects, hidden pipes and wiring in walls etc) which are only discovered on commencement of the Services; or
(d) in the event of increases to Wayelec in the cost of labour or Goods which are beyond Wayelec’s control.
5.3 Variations will be charged for on the basis of Wayelec’s quotation, and will be detailed in writing, and shown as variations on Wayelec’s invoice. The Client shall be required to respond to any variation submitted by Wayelec within ten (10) working days. Failure to do so will entitle Wayelec 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.
5.4 At Wayelec’s sole discretion a deposit may be required.
5.5 Wayelec may submit a detailed payment claim at intervals not less than one (1) month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of Goods delivered to the site but not installed.
5.6 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Wayelec, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with Wayelec’s payment schedule;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Wayelec.
5.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Wayelec.
5.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Wayelec nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Wayelec an amount equal to any GST Wayelec must pay for any supply by Wayelec under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6.1 Subject to clause 6.2 it is Wayelec’s responsibility to ensure that the Services start as soon as it is reasonably possible.
6.2 The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Wayelec claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Wayelec’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify Wayelec that the site is ready.
6.3 At Wayelec’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
6.4 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Wayelec shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.5 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
6.6 Wayelec may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.7 Any time or date given by Wayelec to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Wayelec will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7.1 If Wayelec retains ownership of the Goods under clause 13 then:
(a) where Wayelec 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 the Goods are delivered by Wayelec or Wayelec’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address); or
(b) where Wayelec is to both supply and install Goods then Wayelec 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.
7.2 Notwithstanding the provisions of clause 7.1 if the Client specifically requests Wayelec to leave Goods outside Wayelec’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.
7.3 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
7.4 Where the Client has supplied Goods for Wayelec to complete the Services, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in the Goods. Wayelec shall not be responsible for any defects in the Goods, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of Goods supplied by the Client.
7.5 The Client acknowledges that Wayelec is only responsible for parts that are replaced by Wayelec, and in the event that other Goods, subsequently fail, the Client agrees to indemnify Wayelec against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
7.6 Any advice, recommendation, information, assistance or service provided by Wayelec in relation to Goods or Services supplied is given in good faith, is based on Wayelec’s own knowledge and experience and shall be accepted without liability on the part of Wayelec and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
8.1 The Client shall ensure that Wayelec has clear and free access to the worksite at all times to enable them to undertake the Services. Wayelec 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 Wayelec.
9. Underground Locations
9.1 Prior to Wayelec commencing any work the Client must advise Wayelec of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
9.2 Whilst Wayelec will take all care to avoid damage to any underground services the Client agrees to indemnify Wayelec in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.
10. Compliance with Laws
10.1 The Client and Wayelec 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.
10.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
10.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
11.1 The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that Wayelec, its employees or Wayelec’s reasonably form the opinion that the Client’s premises is not safe for the installation of Goods to proceed then Wayelec shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 6.2 above) until Wayelec is satisfied that it is safe for the installation to proceed. Wayelec may at its sole discretion agree to bring the premises up to a standard suitable for installation to proceed but all such works undertaken and any additional Goods supplied shall be treated as a variation and be charged for in addition to the Price.
11.2 Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 5.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.
11.3 The final location of the wall, window or floor unit must be determined on site by the Client.
11.4 Wayelec shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however Wayelec cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
11.5 In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved.
11.6 The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
11.7 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify Wayelec immediately upon any proposed changes. The Client agrees to indemnify Wayelec against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 5.2.
12. Client’s Responsibility
12.1 The Client agrees that:
(a) Wayelec is not responsible for the removal of rubbish from the building/construction site/s. This is the responsibility of the Client or the Client’s agent; and
(b) it is the Client’s responsibility to:
(i) provide Wayelec, while Wayelec is at the site, with adequate access to available water, toilet and washing facilities; and
(ii) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between Wayelec and the Client, any additional costs will be invoiced to the Client as an extra; and
(iii) supply power and lighting to within ten (10) metres of the project; and
(c) if Wayelec notifies the Client that Wayelec intends to store on the site of the Services, materials and articles for use in the Services, the Client shall designate an area for storage and shall take all reasonable precautions to protect any such materials and articles stored on site from destruction, damage or theft; and
(d) the Client has ensured that the materials specified and accepted by the Client are the correct type, size quantity, colour, finish quality and standard, and conform in every detail with the Client’s requirements; and
(e) the Client has ensured that any specifications, diagrams, drawings and dimensions submitted with this quotation are correct and conform in every detail with the Client’s requirements stated by the Client to Wayelec; and
(f) any description, specifications, diagrams, drawings and particulars of ratings, weights and dimensions submitted with this quotation are approximate only and do not form part of the contract; and
(g) the accuracy of specifications, diagrams, plans and drawings are the Client’s exclusive responsibility and the Client does not rely on Wayelec’s skill or judgement in this respect and Wayelec is entitled to rely on such documents but shall not be liable for any consequent error by Wayelec or the consequences of any error thereby arising.
13.1 Wayelec and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Wayelec all amounts owing to Wayelec; and
(b) the Client has met all of its other obligations to Wayelec.
13.2 Receipt by Wayelec 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.
13.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Goods and must return the Goods to Wayelec on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Wayelec and must pay to Wayelec the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Wayelec and must pay or deliver the proceeds to Wayelec on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Wayelec and must sell, dispose of or return the resulting product to Wayelec as it so directs.
(e) the Client irrevocably authorises Wayelec to enter any premises where Wayelec believes the Goods are kept and recover possession of the Goods.
(f) Wayelec may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Wayelec.
(h) Wayelec may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
14. Personal Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
14.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to Wayelec for Services – that have previously been supplied and that will be supplied in the future by Wayelec to the Client.
14.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Wayelec may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 14.2(a)(i) or 14.2(a)(ii);
(b) indemnify, and upon demand reimburse, Wayelec for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Wayelec;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Wayelec;
(e) immediately advise Wayelec 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.
14.4 Wayelec 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.
14.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
14.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by Wayelec, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Client must unconditionally ratify any actions taken by Wayelec under clauses 14.2 to 14.5.
14.9 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of Wayelec 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).
15.2 The Client indemnifies Wayelec from and against all Wayelec’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Wayelec’s rights under this clause.
15.3 The Client irrevocably appoints Wayelec and each director of Wayelec as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
16.1 The Client must inspect the Goods on delivery and must within five (5) days of delivery notify Wayelec in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Wayelec to inspect the Goods.
16.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
16.3 Wayelec acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Wayelec makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Wayelec’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Client is a consumer within the meaning of the CCA, Wayelec’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If Wayelec is required to replace the Goods under this clause or the CCA, but is unable to do so, Wayelec may refund any money the Client has paid for the Goods.
16.7 If the Client is not a consumer within the meaning of the CCA, Wayelec’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Wayelec at Wayelec’s sole discretion;
(b) limited to any warranty to which Wayelec is entitled, if Wayelec did not manufacture the Goods;
(c) otherwise negated absolutely.
16.8 Subject to this clause 16, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 16.1; and
(b) Wayelec has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, Wayelec shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Wayelec;
(e) fair wear and tear, any accident, or act of God.
16.10 In the case of second hand Goods, 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 Wayelec 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 Wayelec 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 16.10.
16.11 Notwithstanding anything contained in this clause if Wayelec is required by a law to accept a return then Wayelec will only accept a return on the conditions imposed by that law.
17. Intellectual Property
17.1 Where Wayelec has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Wayelec.
17.2 The Client warrants that all designs, specifications or instructions given to Wayelec will not cause Wayelec to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Wayelec against any action taken by a third party against Wayelec in respect of any such infringement.
17.3 The Client agrees that Wayelec may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Wayelec has created for the Client.
18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Wayelec’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes Wayelec any money the Client shall indemnify Wayelec from and against all costs and disbursements incurred by Wayelec in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Wayelec’s contract default fee, and bank dishonour fees).
18.3 Further to any other rights or remedies Wayelec may have under this contract, if a Client has made payment to Wayelec, 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 Wayelec under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
18.4 Without prejudice to Wayelec’s other remedies at law Wayelec shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Wayelec shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Wayelec becomes overdue, or in Wayelec’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by Wayelec;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
19.1 Without prejudice to any other remedies Wayelec may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Wayelec may suspend or terminate the supply of Goods to the Client. Wayelec will not be liable to the Client for any loss or damage the Client suffers because Wayelec has exercised its rights under this clause.
19.2 Wayelec may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Wayelec shall repay to the Client any money paid by the Client for the Goods. Wayelec shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Wayelec as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20. Privacy Act 1988
20.1 The Client agrees for Wayelec to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Wayelec.
20.2 The Client agrees that Wayelec may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
20.3 The Client consents to Wayelec being given a consumer credit report to collect overdue payment on commercial credit.
20.4 The Client agrees that personal credit information provided may be used and retained by Wayelec for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
20.5 Wayelec may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
20.6 The information given to the CRB may include:
(a) personal information as outlined in 20.1 above;
(b) name of the credit provider and that Wayelec is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Wayelec has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Wayelec, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
20.7 The Client shall have the right to request (by e-mail) from Wayelec:
(a) a copy of the information about the Client retained by Wayelec and the right to request that Wayelec correct any incorrect information; and
(b) that Wayelec does not disclose any personal information about the Client for the purpose of direct marketing.
20.8 Wayelec 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 agreement or is required to be maintained and/or stored in accordance with the law.
20.9 The Client can make a privacy complaint by contacting Wayelec via e-mail. Wayelec will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
21. Building and Construction Industry Security of Payments Act 1999
21.1 At Wayelec’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
21.2 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 Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
22.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which Wayelec has its principal place of business, and are subject to the jurisdiction of the courts of New South Wales.
22.3 Subject to clause 16, Wayelec 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 Wayelec of these terms and conditions (alternatively Wayelec’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4 Wayelec may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
22.5 The Client cannot licence or assign without the written approval of Wayelec.
22.6 Wayelec 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 Wayelec’s sub-contractors without the authority of Wayelec.
22.7 The Client agrees that Wayelec may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Wayelec to provide Goods to the Client.
22.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
Updated: July 2017