Refrigeration Consulting Services Pty Limited
Terms and Conditions of Trade
- 1 “RCS” means Refrigeration Consulting Services Pty Limited, its successors and assigns or any related Entity or person acting on behalf of and with the authority of Refrigeration Consulting Services Pty Limited.
- 2 “Client” means the person/s and / or Entity buying the Goods as specified in any invoice, document or order, and if there is more than one Client this is a reference to each Client jointly and severally.
- 3 “Goods” means all Goods and / or Services supplied by RCS 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).
- 4 “Price” means the Price payable for the Goods and / or Services, as agreed between RCS and the Client in accordance with clause 4 below.
- 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 These terms and conditions may only be amended with RCS’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and RCS.
- 3 The Client accepts and acknowledges unless agreed to in writing, that the cost of all Supply Authority and Statutory Authority Charges in connection with the Services provided, which are levied by Distribution Network Supply Providers (DNSP) or other Statutory Authorities will be at the cost of the Client and shall be added to the Price.
- 4 The Client accepts these terms and conditions are based on ordinary time rates of pay for labour on a thirty eight hour working week basis. The Client accepts that if any Services are required outside of these working hours that the Client is obligated to RCS to pay labour at rates in excess of ordinary times rates of pay and the costs of such changes shall be added to the total Price.
- 5 RCS reserves the right to postpone all Services arranged in the event of poor weather conditions, or any other Event or condition that may pose a safety risk for all or any of the parties. The Client accepts in this instance should employees of RCS be unable able to work a full forty eight (48) hours per week due solely to the event of inclement weather or Event that the cost of such employment whilst the employees are unable to work shall be the responsibility of the Client and shall be added to the total Price.
- Change in Control
- 1 The Client shall give RCS 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 Directorship or shareholding, or business practice). The Client shall be liable for any loss incurred by RCS as a result of the Client’s failure to comply with this clause.
- Price and Payment
- 1 At RCS’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by RCS to the Client; or
(b) RCS’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days, whichever comes first.
- 2 RCS reserves the right to change the Price if a variation to RCS’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of increases to RCS in the cost of taxes, levies, materials and labour or where additional Services are required due to the discovery of hidden or unidentifiable difficulties including, but not limited to, limitations to accessing the site, obscured building defects, safety considerations, prerequisite work by any third party not being completed or hidden pipes and wiring in walls etc which are only discovered on commencement of the Services) will be charged for on the basis of RCS’s quotation and will be shown as variations on the invoice.
- 3 At RCS’s sole discretion a deposit may be required prior to the ordering of materials and / or commencement of the works.
- 4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by RCS, at its sole discretion, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with RCS’s payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by RCS.
- 5 RCS may submit a detailed payment claim at intervals not less than monthly for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations and the value of Goods delivered to the site but not installed.
- 6 Payment is to be made by cheque, bank cheque, electronic/on-line banking or by any other method as agreed to between the Client and RCS.
- 7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to RCS an amount equal to any GST RCS must pay for any supply by RCS 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.
- Delivery of Goods
- 1 Delivery (“Delivery”) of the Goods is taken to occur at the time that RCS (or RCS’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
- 2 At RCS’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
- 3 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 RCS shall be entitled to charge a reasonable fee for redelivery and/or storage.
- 4 RCS 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.
- 5 Any time or date given by RCS to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and RCS will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
- 1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
- 2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, RCS is entitled to receive any compensation, and / or all insurance proceeds payable for the Goods. The Parties irrevocably agree that, upon the client’s acceptance of RCS’s quote, the production of these terms and conditions by RCS is deemed by all parties to be sufficient evidence of the Irrevocable Authority granted to RCS, on the date of acceptance of the RCS quote, by the client of RCS’s rights to receive the compensation and / or insurance proceeds without the need for the client, or any person dealing with RCS, to make further enquiries.
- 3 If the Client requests RCS to leave Goods outside RCS’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
- 4 RCS shall not be liable for any loss or damage caused in accessing the work site beyond reasonable control of RCS (including, without limitation, to ceiling tiles and panels, face brickwork and rendered masonry services) which RCS may have to break into or disturb in performance of the Services), unless due to the negligence of RCS.
- 5 The Client acknowledges that RCS is only responsible for parts that are replaced by RCS and that in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify RCS against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising (including, but not limited to, loss of perishables, flooding and/or damage to clothing).
- 6 Where RCS gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability, or lack thereof, of the worksite for the installation of plant and equipment, and such advice or recommendations are not acted upon, then RCS shall require the Client or their agent to authorise commencement of the Services in writing. RCS shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of those particular Services.
- Air Conditioning Risk
- 1 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 4.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.
- 2 The final location of the wall, window or floor unit must be determined on site by the Client.
- 3 The Client acknowledges and agrees that RCS does not guarantee any noise levels (external or internal) will, or can, be adhered to. RCS cannot be, and is not held liable for any loss, damages, or costs, however resulting from noise levels. The client indemnifies, and keeps indemnified, RCS, its servants and / or agents from any and all claims in this regard.
- 4 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. The client indemnifies, and keeps indemnified, RCS, its servants and / or agents from any and all claims in this regard.
- 5 The Client acknowledges and agrees that it is their responsibility, and that they will insure any equipment partly or completely installed on site, against theft or damage.
- 6 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 RCS immediately upon any proposed changes. The Client will indemnify RCS against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 4.2.
- Client’s Responsibilities
- 1 It is the Client’s responsibility to;
(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation; and
(b) fully disclose any information that may affect RCS’s installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa); and
(c) ensure the sub-floor is adequately ventilated and is structurally sound; and
(d) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care is taken but no responsibility is accepted by RCS in this regard; and
(e) supply power to within eight (8) metres of the project; and
(f) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to any or all of these conditions precedent, then the client acknowledges that the installation schedule agreed to between RCS and the Client may not be capable of being met due to the failure of the client to provide the agreed and required conditions. Any additional costs will be invoiced to the Client as an extra.
- 2 RCS is not insured to remove furniture or fittings and will not do so, nor is RCS licensed to move gas or electrical appliances.
- 3 It is the intention of RCS and agreed by the Client that it is the responsibility of the Client to provide and have erected, at the client’s sole expense, scaffolding to enable the Services to be undertaken (where in RCS’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
- 4 The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is the client’s sole responsibility to ensure the safe removal of the same at the client’s sole cost. The Client further agrees to indemnify RCS its servants and / or agents against any costs incurred by RCS as a consequence of such discovery. Under no circumstances will RCS handle removal of asbestos product.
- 1 The Client shall ensure that RCS has clear and free access to the work site at all times to enable them to undertake the Services. RCS 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 RCS.
- 1 RCS and the Client agree that ownership of the Goods does not pass until:
(a) the Client has paid RCS all amounts owing to RCS; and
(b) the Client has met all of its other obligations to RCS.
- 2 Receipt by RCS 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 by RCS’s financial institution.
- 3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to RCS on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for RCS and must pay to RCS 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 holds the proceeds of any such act on trust for RCS and must pay or deliver the proceeds to RCS, or its nominee, 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 RCS and must sell, dispose of or return the resulting product to RCS as it so directs.
(e) the Client irrevocably authorises RCS to enter any premises where RCS believes the Goods are kept and recover possession of the Goods.
(f) RCS may recover possession of any Goods in storage, or 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 RCS.
(h) RCS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
11. Personal Property Securities Act 2009 (“PPSA”)
- 1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
- 2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by RCS to the Client.
- 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 RCS 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 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, RCS 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 RCS;
(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 RCS;
(e) immediately advise RCS 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.
- 4 RCS and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
- 5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
- 6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
- 7 Unless otherwise agreed to in writing by RCS, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
- 8 The Client must unconditionally ratify any actions taken by RCS under clauses 11.3 to 11.5.
- 9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
- 1 In consideration of RCS 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). By contracting with RCS to perform the works and / or services, the Client expressly grants RCS an Irrevocable Right to lodge a Caveat with relevant Land Titles Office, without further notice, against any or all of the Client’s properties by way of securing any and all monies outstanding to RCS.
- 2 The Client indemnifies RCS from and against all RCS’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising RCS’s rights under this clause.
- 3 The Client irrevocably appoints RCS and each director of RCS as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
- Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify RCS 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 RCS to inspect the Goods.
- 2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
- 3 RCS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
- 4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, RCS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. RCS’s liability in respect of these warranties is limited to the fullest extent permitted by law.
- 5 If the Client is a consumer within the meaning of the CCA, RCS’s liability is limited to the extent permitted by section 64A of Schedule 2.
- 6 If RCS is required to replace the Goods under this clause or the CCA, but is unable to do so, RCS may refund any money the Client has paid for the Goods.
- 7 If the Client is not a consumer within the meaning of the CCA, RCS’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 RCS at RCS’s sole discretion;
(b) limited to any warranty to which RCS is entitled, if RCS did not manufacture the Goods;
(c) otherwise negated absolutely.
- 8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 13.1; and
(b) RCS 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.
- 9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, RCS 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 RCS;
(e) fair wear and tear, any accident, or act of God.
- 10 RCS may in its absolute discretion accept non-defective Goods for return in which case RCS may require the Client to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.
- 11 Notwithstanding anything contained in this clause if RCS is required by a law to accept a return then RCS will only accept a return on the conditions imposed by that law.
14. Intellectual Property
14.1 Where RCS has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of RCS.
14.2 The Client warrants that all designs, specifications or instructions given to RCS will not cause RCS to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify RCS against any action taken by a third party against RCS in respect of any such infringement.
15. Default and Consequences of Default
- 1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at RCS’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- 2 If the Client owes RCS any money the Client shall indemnify RCS from and against all costs and disbursements incurred by RCS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, RCS’s collection agency costs, and bank dishonour fees).
- 3 Without prejudice to any other remedies RCS may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions RCS may suspend or terminate the supply of Goods to the Client. RCS will not be liable to the Client for any loss or damage the Client suffers because RCS has exercised its rights under this clause.
- 4 Without prejudice to RCS’s other remedies at law RCS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to RCS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to RCS becomes overdue, or in RCS’s opinion the Client will be unable to make a payment when it falls due;
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16. Compliance with Laws
- 1 The Client and RCS 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.
- 2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
- 3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
17. Dispute Resolution
- 1 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:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
- 1 RCS 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 RCS shall repay to the Client any money paid by the Client for the Goods. RCS shall not be liable for any loss or damage whatsoever arising from such cancellation.
- 2 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 RCS as a direct result of the cancellation (including, but not limited to, any loss of profits).
- 3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19. Privacy Act 1988
- 1 The Client agrees for RCS to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by RCS.
- 2 The Client agrees that RCS may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
- 3 The Client consents to RCS being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
- 4 The Client agrees that personal credit information provided may be used and retained by RCS for the following purposes (and for other purposes as shall be agreed between the Client and RCS or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by RCS, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
- 5 RCS may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
- 6 The information given to the credit reporting agency may include:
(a) personal particulars (including, but not limited to, the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that RCS is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of RCS, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by RCS has been paid or otherwise discharged.
20. Unpaid RCS’s Rights
- 1 Where the Client has left any item with RCS for repair, modification, exchange or for RCS to perform any other service in relation to the item and RCS has not received or been tendered the whole of any moneys owing to it by the Client, RCS shall have, until all moneys owing to RCS are paid:
(a) a lien on the item/s; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
- 2 The Clients of RCS shall continue to be bound by these terms and conditions, despite the commencement of proceedings, or judgment for any moneys owing to RCS having been obtained against the Client.
21. Building and Construction Industry Security of Payment Act
- 1 At RCS’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 (Victoria), Building and Construction Industry Security of Payments Act 1999 (New South Wales), Building and Construction Industry Payments Act 2004 (Queensland) and the Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
- 2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 21 each as applicable, except to the extent permitted by the Act where applicable.
- 1 The failure by RCS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect RCS’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.
- 2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of New South Wales in which RCS has its principal place of business, and are subject to the jurisdiction of the Manly Local Courts, or any competent Jurisdiction in that state.
- 3 Subject to clause 13 RCS 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 RCS of these terms and conditions, or, alternatively, the Parties expressly agree that RCS’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
- 4 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 RCS nor to withhold payment of any invoice because part of that invoice is in dispute.
- 5 RCS may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
- 6 The Client agrees that RCS, in its absolute discretion, may amend these terms and conditions at any time. If RCS makes a change to these terms and conditions, then that change will take effect from the date on which RCS notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for RCS to provide Goods to the Client.
- 7 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.
- 8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.