- Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Seller” means Stenzel Technology Enterprises Pty Ltd T/A STE Advantage, its successors and assigns or any person acting on behalf of and with the authority of Stenzel Technology Enterprises Pty Ltd T/A STE Advantage.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting STE Advantage to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by STE Advantage to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable/disable the Cookies first by selecting the option to enable/disable provided on the website, prior to ordering Goods via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between STE Advantage and the Customer in accordance with clause 5 below.
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
- Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with STE Advantage and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, STE Advantage reserves the right to refuse delivery.
2.6 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.
2.7 These terms and conditions may be meant to be read in conjunction with STE Advantage’s Hire Form, and:
(a) where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment, as defined therein; and
(b) if there are any inconsistencies between the two documents, then the terms and conditions contained therein shall prevail.
- Errors and Omissions
3.1 The Customer acknowledges and accepts that STE Advantage 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 STE Advantage 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 STE Advantage 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 STE Advantage; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
- Change in Control
4.1 The Customer shall give STE Advantage not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by STE Advantage as a result of the Customer’s failure to comply with this clause.
- Price and Payment
5.1 At STE Advantage’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by STE Advantage to the Customer; or
(b) STE Advantage’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 STE Advantage reserves the right to change the Price if a variation to STE Advantage’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, change of design or scope, prerequisite work by any third party not being completed or as a result of any increase to STE Advantage in the cost of materials and labour) will be charged for on the basis of STE Advantage’s quotation and will be shown as variations on the invoice. The Customer shall be required to respond to any variation submitted by STE Advantage within ten (10) working days. Failure to do so will entitle STE Advantage 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.
5.3 At STE Advantage’s sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by STE Advantage, which may be:
(a) on Delivery of the Goods;
(b) before Delivery of the Goods;
(c) by way of instalments/progress payments in accordance with STE Advantage’s payment schedule;
(d) for certain approved Customers, fourteen (14) days following the date of any invoice;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by STE Advantage.
5.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and STE Advantage.
5.6 STE Advantage may in its discretion allocate any payment received from the Customer towards any invoice that STE Advantage determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer, STE Advantage may re-allocate any payments previously received and allocated. In the absence of any payment allocation by STE Advantage, payment will be deemed to be allocated in such manner as preserves the maximum value of STE Advantage’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by STE Advantage nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to STE Advantage an amount equal to any GST STE Advantage must pay for any supply by STE Advantage under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set-off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that STE Advantage (or STE Advantage’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
6.2 At STE Advantage’s sole discretion, the cost of delivery is included in the price.
6.3 STE Advantage 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.
6.4 Any time specified by STE Advantage for Delivery of the Goods is an estimate only, and STE Advantage will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that STE Advantage is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then STE Advantage shall be entitled to charge a reasonable fee for redelivery and/or storage.
- Risk
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery, and the Customer must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, STE Advantage is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by STE Advantage is sufficient evidence of STE Advantage’s rights to receive the insurance proceeds without the need for any person dealing with STE Advantage to make further enquiries.
7.3 If the Customer requests STE Advantage to leave Goods outside STE Advantage’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
7.4 Where STE Advantage is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and STE Advantage shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
7.5 The Customer must be on-site to supervise the marking out of the fence line, placement of boundary pegs and during the installation of the fence. If the Customer fails to comply with this clause, then STE Advantage accepts no responsibility for installation decisions that need to be made by STE Advantage in the Customer’s absence.
7.6 The Customer acknowledges that it is their responsibility to remove any existing fence (including existing footings), trees, vines and shrubs to allow STE Advantage clear access along the proposed fence line prior to commencement of work by STE Advantage unless otherwise agreed in writing between STE Advantage and the Customer. Under no circumstances will STE Advantage handle removal of asbestos product.
7.7 The Customer shall provide STE Advantage with a suitable free power source.
7.8 Whilst STE Advantage will take all due care during installation STE Advantage will not accept any responsibility for tiles or pavers damaged during installation.
7.9 Where fencing is installed on a retaining wall, STE Advantage shall not be liable for any movement in the fence due to consolidation or the movement of soil or any other component of the retaining wall.
7.10 Location of underground services by a licensed service locator is mandatory prior to commencement of any Services. “Dial Before You Dig” must be consulted and any potential underground services marked on site. Whilst STE Advantage will take all care to avoid damage to any underground services the Customer agrees to indemnify STE Advantage 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. If the Customer requests STE Advantage to engage the service locator, then this shall be in addition to the Price.
7.11 STE Advantage shall not be responsible for digging land out under fence lines nor removal of soil from the site.
7.12 STE Advantage reserves the right to touch-up all products supplied and installed on the site.
7.13 The Customer agrees that STE Advantage shall not be liable for any damage or loss including personal injury, death, (including but not limited to the failure of the Customer to follow STE Advantage’s safety, operation or maintenance instructions, or prior mitigating health conditions of the person) or property loss due to any electrical event beyond STE Advantage’s control.
7.14 Where the Customer has supplied materials for STE Advantage to complete the Services, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. STE Advantage shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
7.15 The Customer acknowledges that STE Advantage is only responsible for parts that are replaced by STE Advantage and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Customer agrees to indemnify STE Advantage against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
7.16 In the event that STE Advantage discovers asbestos/hazardous materials whilst undertaking any Services STE Advantage shall immediately advise the Customer of the same and shall be entitled to suspend the Services pending a risk assessment in relation to those materials. The Customer shall be liable for all additional costs (howsoever arising) incurred by STE Advantage as a result of the discovery of asbestos/hazardous materials and/or any suspension of Services in relation thereto.
7.17 The Customer accepts that electronic security systems, monitors, sensors and like detectors installed to/at their premises:
(a) are for monitoring and detection purposes and should not be seen as a life-saving device; and
(b) does not guarantee the site will be free from malicious damage or losses caused by an attack, break and/or enter.
7.18 It shall be the Customer’s responsibility:
(a) to ensure the security system equipment is tested and maintained to full operational condition; and
(b) for all phone calls emanating from the security system panel; and
(c) to ensure all electronically protected areas are free from obstacles which may impair the operation of the system.
- Accuracy of Customer’s Plans and Measurements
8.1 STE Advantage shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, STE Advantage accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
- Specifications
9.1 The Customer acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in STE Advantage’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by STE Advantage.
9.2 The Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
- Access
10.1 The Customer shall ensure that STE Advantage has clear and free access to the site at all times to enable them to undertake the Services. STE Advantage 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 STE Advantage.
- Compliance with Laws
11.1 The Customer and STE Advantage 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.
11.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
11.3 The Customer 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.
- Title
12.1 STE Advantage and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid STE Advantage all amounts owing to STE Advantage; and
(b) the Customer has met all of its other obligations to STE Advantage.
12.2 Receipt by STE Advantage of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 12.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to STE Advantage on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for STE Advantage and must pay to STE Advantage the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for STE Advantage and must pay or deliver the proceeds to STE Advantage on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of STE Advantage and must sell, dispose of or return the resulting product to STE Advantage as it so directs;
(e) the Customer irrevocably authorises STE Advantage to enter any premises where STE Advantage believes the Goods are kept and recover possession of the Goods;
(f) STE Advantage may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Customer 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 STE Advantage;
(h) STE Advantage may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
- Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest have the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Customer 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 Customer to STE Advantage for Services – that have previously been supplied and that will be supplied in the future by STE Advantage to the Customer.
13.3 The Customer 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 STE Advantage may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, STE Advantage 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 STE Advantage;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of STE Advantage;
(e) immediately advise STE Advantage of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
13.4 STE Advantage and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by STE Advantage, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Customer must unconditionally ratify any actions taken by STE Advantage under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
- Security and Charge
14.1 In consideration of STE Advantage agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Customer indemnifies STE Advantage from and against all STE Advantage’s costs and disbursements, including legal costs on a solicitor and own client basis incurred in exercising STE Advantage’s rights under this clause.
14.3 The Customer irrevocably appoints STE Advantage and each director of STE Advantage as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer’s behalf.
- Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Customer must inspect the Goods on delivery and must within seven (7) days of Delivery notify STE Advantage in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Customer must allow STE Advantage to inspect the Goods.
15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
15.3 STE Advantage acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, STE Advantage makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. STE Advantage’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Customer is a consumer within the meaning of the CCA, STE Advantage’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If STE Advantage is required to replace the Goods under this clause or the CCA but is unable to do so, STE Advantage may refund any money the Customer has paid for the Goods.
15.7 If the Customer is not a consumer within the meaning of the CCA, STE Advantage’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 Customer by STE Advantage at STE Advantage’s sole discretion;
(b) limited to any warranty to which STE Advantage is entitled if STE Advantage did not manufacture the Goods;
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 15.1; and
(b) STE Advantage has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, STE Advantage 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 Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer 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 Customer failing to follow any instructions or guidelines provided by STE Advantage;
(e) fair wear and tear, any accident, or act of God.
15.10 In the case of second-hand goods, unless the Customer is a consumer under the CCA, the Customer 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 STE Advantage as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that STE Advantage has agreed to provide the Customer with the second-hand Goods and calculated the Price of the second-hand Goods in reliance of this clause 15.10.
15.11 STE Advantage may in its absolute discretion accept non-defective Goods for return in which case STE Advantage may require the Customer to pay handling fees of up to twenty-five per cent (25%) of the value of the returned Goods plus any freight costs.
- Intellectual Property
16.1 Where STE Advantage has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of STE Advantage. Under no circumstances may such designs, drawings and documents be used without the express written approval of STE Advantage.
16.2 The Customer warrants that all designs, specifications or instructions given to STE Advantage will not cause STE Advantage to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify STE Advantage against any action taken by a third party against STE Advantage in respect of any such infringement.
16.3 The Customer agrees that STE Advantage may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which STE Advantage has created for the Customer.
- Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half per cent (2.5%) per calendar month (and at STE Advantage’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Customer owes STE Advantage any money, the Customer shall indemnify STE Advantage from and against all costs and disbursements incurred by STE Advantage in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, STE Advantage’s contract default fee, and bank dishonour fees).
17.3 Further to any other rights or remedies STE Advantage may have under this Contract if a Customer has made payment to STE Advantage, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by STE Advantage under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
17.4 Without prejudice to STE Advantage’s other remedies at law STE Advantage shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to STE Advantage shall, whether or not due for payment, become immediately payable if:
(a) any money payable to STE Advantage becomes overdue, or in STE Advantage’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by STE Advantage;
(c) the Customer 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 Customer or any asset of the Customer.
- Cancellation
18.1 Without prejudice to any other remedies, STE Advantage may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions STE Advantage may suspend or terminate the supply of Goods to the Customer. STE Advantage will not be liable to the Customer for any loss or damage the Customer suffers because STE Advantage has exercised its rights under this clause.
18.2 STE Advantage 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 Customer. On giving such notice, STE Advantage shall repay to the Customer any money paid by the Customer for the Goods. STE Advantage shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 In the event that the Customer cancels delivery of Goods, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by STE Advantage as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4 To terminate a Service Agreement on, or after, the current term, the Customer must give STE Advantage not less than twenty (20) working days’ notice prior to the current anniversary date of the agreement. The Service Agreement will then terminate at the end of the current term. If the Customer does not terminate the Service Agreement on expiry of the current term, the Services shall revert to a month-by-month basis charge until otherwise agreed by both parties. Any additional charges shall become due and payable until notice (as herein) is received.
18.5 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
- Privacy Policy
19.1 All emails, documents, images or other recorded information held or used by STE Advantage is Personal Information, as defined and referred to in clause 19.2(d), and therefore considered Confidential Information. STE Advantage 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”). STE Advantage acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by STE Advantage that may result in serious harm to the Customer, STE Advantage will notify the Customer 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 Customer by written consent, unless subject to an operation of law.
19.2 Notwithstanding clause 19.1, privacy limitations will extend to STE Advantage in respect of Cookies where transactions for purchases/orders transpire directly from STE Advantage’s website. STE Advantage agrees to display a 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 Customers:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to STE Advantage when STE Advantage sends an email to the Customer, so STE Advantage may collect and review that information (“collectively Personal Information”)
In order to enable/disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable/disable the Cookies first by selecting the option to enable/disable, provided on the website prior to proceeding with a purchase/order via STE Advantage’s website.
(d) The Customer agrees for STE Advantage 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 Customer in relation to credit provided by STE Advantage.
19.3 The Customer agrees that STE Advantage may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer, including the Customer’s repayment history in the preceding two (2) years.
19.4 The Customer consents to STE Advantage being given a consumer credit report to collect overdue payment on commercial credit.
19.5 The Customer agrees that personal credit information provided may be used and retained by STE Advantage 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 Customer’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 Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
19.6 STE Advantage may give information about the Customer 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 Customer, including credit history.
19.7 The information given to the CRB may include:
(a) Personal Information as outlined in 19.2(d) above;
(b) name of the credit provider and that STE Advantage is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’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 Customer no longer has any overdue accounts and STE Advantage has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of STE Advantage, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
19.8 The Customer shall have the right to request (by e-mail) from STE Advantage:
(a) a copy of the Personal Information about the Customer retained by STE Advantage and the right to request that STE Advantage correct any incorrect Personal Information; and
(b) that STE Advantage does not disclose any Personal Information about the Customer for the purpose of direct marketing.
19.9 STE Advantage will destroy Personal Information upon the Customer’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.
19.10 The Customer can make a privacy complaint by contacting STE Advantage via e-mail. STE Advantage 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
- Building and Construction Industry Security of Payment Act 2002
20.1 At STE Advantage’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 may apply.
20.2 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 Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
- Service of Notices
21.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by email to the other party’s last known email address.
21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
- Trusts
22.1 If the Customer at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not STE Advantage may have notice of the Trust, the Customer covenants with STE Advantage as follows:
(a) the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer 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 Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of STE Advantage (STE Advantage will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
- General
23.1 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.
23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which STE Advantage has its principal place of business, and are subject to the jurisdiction of the courts of Victoria.
23.3 Subject to clause 15, STE Advantage shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by STE Advantage of these terms and conditions (alternatively STE Advantage’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
23.4 STE Advantage may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
23.5 The Customer cannot licence or assign without the written approval of STE Advantage.
23.6 STE Advantage 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 Customer agrees and understands that they have no authority to give any instruction to any of STE Advantage’s sub-contractors without the authority of STE Advantage.
23.7 The Customer agrees that STE Advantage may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for STE Advantage to provide Goods to the Customer.
23.8 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.
23.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorizations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
