1.1 “Alexys” means Alexys Australia Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of AlexysAustralia Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Alexys 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 for the Goods as agreed between Alexys and the Client in accordance with clause 6 below.
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 Alexys’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Alexys.
2.3 Goods are supplied by Alexys only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.4 In relation to warranty claims, the Client accepts that where Alexys determines, at Alexys’ sole discretion, that a fault is not due to defective workmanship, then the Client shall be responsible for the full cost of any remedial work and any call out fee as may be applicable.
3. Electronic Transactions Act 2000
3.1 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.
4. Change in Control
4.1 The Client shall give Alexys 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 Alexys as a result of the Client’s failure to comply with this clause.
5. Contract Term
5.1 At Alexys’ sole discretion or unless otherwise agreed or stated in writing, all new Clients must commit to a minimum term of twelve (12) months programmed maintenance agreement with Alexys (excluding CCTV installations, tendered contract works, non-alarm installations and the like).
5.2 Upon expiration of the Contract Term, this agreement will continue on a month-to-month basis, subject to termination by either party with one (1) months’ prior written notice.
5.3 In the event this term is terminated by the Client prior to expiration of the term, the Client shall incur a termination fee equal to the remaining expected maintenance fee which would fulfill the three (3) month commitment.
6. Price and Payment
6.1 At Alexys’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Alexys to the Client; or
(b) Alexys’ quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30)
6.2 Alexys reserves the right to change the Price if a variation to Alexys’ quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, including any additional costs incurred by Alexys where the Client requests the acceleration of the existing work schedule (as per clause 7.4); or any variation as a result of additional Services required due to unforeseen circumstances such as inaccurate plans, limitations to site access and where required crawl spaces, any hidden services not disclosed but found behind hard surfaces, prerequisite work by any third party not being completed) will be charged for on the basis of Alexys’ quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
6.3 At Alexys’ sole discretion a deposit may be required.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Alexys, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of installments/progress payments in accordance with Alexys’ payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed;
(d) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices; or
(e) the date specified on any invoice or other form as being the date for payment.
6.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to five percent (5%) of the Price), or by any other method as agreed to between the Client and Alexys.
6.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Alexys an amount equal to any GST Alexys must pay for any supply by Alexys 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.
7.1 Subject to clause 7.2, it is Alexys’ responsibility to ensure that the Services start as soon as it is reasonably possible.
7.2 The Client shall, within fourteen (14) days of accepting Alexys’ quotation (unless otherwise agreed), hand the site over to Alexys in order for the Services to commence. The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Alexys claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Alexys’ control, including but not limited to any event as per clause 24.7, or any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Works (including any delay caused by the non-completion of prerequisite work performed by third parties); or
(c) notify Alexys that the site is ready.
7.3 At Alexys’ sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
7.4 In the event that Alexys is required to provide the Services urgently, requiring Alexys’ staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays), then Alexys reserves the right to charge the Client additional labour costs (penalty rates will apply) as per clause 6.2, unless otherwise agreed between Alexys and the Client.
7.5 Alexys reserves the right to postpone the Services where (in the reasonable opinion of Alexys) the work site poses a safety risk for all parties (including, but not limited to, poor weather conditions, or the discovery of asbestos). The Client accepts in this instance should employees of Alexys be unable able to work a full forty (40) hours per week due solely to the event of inclement weather, 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 Price.
7.6 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 Alexys shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.7 Alexys 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.
7.8 Any time or date given by Alexys to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Alexys will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
8.1 If Alexys retains ownership of the Goods under clause 13 then:
(a) where Alexys is supplying Goods only, all risk for the Goods shall immediately pass to the Client on delivery and the Client must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either;
(i) the Client or the Client’s nominated carrier takes possession of the Goods at Alexys’ address; or
(ii) the Goods are delivered by Alexys or Alexys’ nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(b) where Alexys is to both supply and install Goods then Alexys shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Works all risk for the Services shall immediately pass to the Client.
8.2 Notwithstanding the provisions of clause 8.1 if the Client specifically requests Alexys to leave Goods outside Alexys’ 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.
8.3 Where Alexys gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the worksite for the installation of the Goods and such advice or recommendations are not acted upon then Alexys shall require the Client or their agent to authorise commencement of the Services in writing. Alexys shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
8.4 Where Alexys is required to install the Incidental Items the Client 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 Alexys 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.
8.5 In the event that Alexys discovers asbestos/hazardous materials whilst undertaking any Services Alexys shall immediately advise the Client of the same and shall be entitled to suspend the Services pending a risk assessment in relation to those materials. The Client shall be liable for all additional costs (howsoever arising) incurred by Alexys as a result of the discovery of asbestos/hazardous materials and/or any suspension of Services in relation thereto.
8.6 The Client accepts that electronic security systems and/or alarms 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 attack, break and/or enter.
8.7 It shall be the Client’s responsibility:
(a) to ensure the electronic and/or alarm 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.
8.8 Unless otherwise stated in the agreement, any statutory authority charges that may be applicable to the Services and charged to Alexys, shall be on-charged to the Client as a variation as per clause 6.2.
9. Client’s Responsibilities
9.1 It is the Client’s responsibility to:
(a) have all areas to enable scheduled work to be completed in accordance with the schedule of installation; and
(b) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by Alexys in this regard; and
(c) 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 Alexys and the Client, any additional costs will be invoiced to the Client as an extra.
9.2 Alexys is not insured to remove furniture or fittings and will not do so, nor is Alexys licensed to move gas or electrical appliances.
9.3 The Client warrants that all Goods or other fittings to be fitted or systems the Goods are to be connected to meet current Australian Standards and any local authority requirements.
9.4 The Client shall provide Alexys with plans, specifications and/or location details prior to the commencement of the Services.
9.5 It shall be the Client’s responsibility, unless otherwise agreed to, to repair any surface that has been disturbed or broken into during the course of the Services.
10.1 The Client shall ensure that Alexys has clear and free access to the work site at all times to enable them to undertake the Services. Alexys 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 Alexys.
11. Services Locations
11.1 Prior to Alexys commencing any work the Client must advise Alexys of the precise location of all underground and/or hidden services on the site and clearly mark the same. The 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.
11.2 Whilst Alexys will take all care to avoid damage to any services the Client agrees to indemnify Alexys 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 11.1.
12. Compliance with Laws
12.1 The Client and Alexys shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
12.2 The Client shall:
(a) be liable for any costs incurred by Alexys due to the Client’s failure to comply with clause 12.1; and
(b) obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
13.1 Alexys and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Alexys all amounts owing to Alexys; and
(b) the Client has met all of its other obligations to Alexys.
13.2 Receipt by Alexys 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 Alexys on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Alexys and must pay to Alexys 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 Alexys and must pay or deliver the proceeds to Alexys 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 Alexys and must sell, dispose of or return the resulting product to Alexys as it so directs.
(e) the Client irrevocably authorises Alexys to enter any premises where Alexys believes the Goods are kept and recover possession of the Goods.
(f) Alexys 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 Alexys.
(h) Alexys 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 Alexys for Services – that have previously been supplied and that will be supplied in the future by Alexys 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 Alexys 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 14.3(a)(i) or 14.3(a)(ii);
(b) indemnify, and upon demand reimburse, Alexys 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 Alexys;
(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 Alexys;
(e) immediately advise Alexys 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 Alexys 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 Alexys, 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 Alexys under clauses 14.3 to 14.5.
14.9 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.
15. Security and Charge
15.1 In consideration of Alexys 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 Alexys from and against all Alexys’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Alexys’ rights under this clause.
15.3 The Client irrevocably appoints Alexys and each director of Alexys 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 seven (7) days of delivery notify Alexys 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 Alexys 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 Alexys 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, Alexys makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Alexys’ 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, Alexys’ liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If Alexys is required to replace the Goods under this clause or the CCA, but is unable to do so, Alexys 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, Alexys’ 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 Alexys at Alexys’ sole discretion;
(b) limited to any warranty to which Alexys is entitled, if Alexys 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) Alexys 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, Alexys 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 Alexys;
(e) fair wear and tear, any accident, or act of God.
16.10 The Client accepts that the following are not covered by the warranty:
(a) batteries, fuses, filters, tubes, lamps, or other consumables; or
(b) where products are faulty or are recalled.
16.11 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 Alexys 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 Alexys 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 16.11.
16.12 Alexys may in its absolute discretion accept non-defective Goods for return in which case Alexys 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.
16.13 Notwithstanding anything contained in this clause if Alexys is required by a law to accept a return then Alexys will only accept a return on the conditions imposed by that law.
16.14 The Client accepts that warranties repairs shall only be carried out if the Client’s account has been paid in full.
17. Intellectual Property
17.1 Where Alexys has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Alexys.
17.2 The Client warrants that all designs, specifications or instructions given to Alexys will not cause Alexys to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Alexys against any action taken by a third party against Alexys in respect of any such infringement.
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 Alexys’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes Alexys any money the Client shall indemnify Alexys from and against all costs and disbursements incurred by Alexys in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Alexys’ contract default fee, and bank dishonour fees).
18.3 Further to any other rights or remedies Alexys may have under this contract, if a Client has made payment to Alexys by credit card and/or cheque, 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 Alexys 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 agreement.
18.4 Without prejudice to any other remedies Alexys may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Alexys may suspend or terminate the supply of Goods to the Client. Alexys will not be liable to the Client for any loss or damage the Client suffers because Alexys has exercised its rights under this clause.
18.5 Without prejudice to Alexys’ other remedies at law Alexys shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Alexys shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Alexys becomes overdue, or in Alexys’ 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.
19.1 Alexys 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 Alexys shall repay to the Client any money paid by the Client for the Goods. Alexys shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.2 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 Alexys as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.3 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.
20. Privacy Act 1988
20.1 The Client agrees for Alexys 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 Alexys.
20.2 The Client agrees that Alexys 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 Alexys 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 Alexys 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 Alexys 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 Alexys 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 Alexys has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Alexys, 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 Alexys:
(a) a copy of the information about the Client retained by Alexys and the right to request that Alexys correct any incorrect information; and
(b) that Alexys does not disclose any personal information about the Client for the purpose of direct marketing.
20.8 Alexys 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 Alexys via e-mail. Alexys 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. Unpaid Seller’s Rights
21.1 Where the Client has left any item with Alexys for repair, modification, exchange or for Alexys to perform any other service in relation to the item and Alexys has not received or been tendered the whole of any monies owing to it by the Client, Alexys shall have, until all monies owing to Alexys are paid:
(a) a lien on the item; 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.
21.2 The lien of Alexys shall continue despite the commencement of proceedings, or judgment for any monies owing to Alexys having been obtained against the Client.
22. Dispute Resolution
22.1 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.
23. Other Applicable Legislation
23.1 At Alexys’ 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), Construction Contracts Act 2004 (Western Australia), Building and Construction Industry Payments Act 2004 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory of Australia), Building and Construction Industry Security of Payments Act 2009 (Tasmania), Building and Construction Industry Security of Payments Act 2009 (South Australia) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
23.2 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
23.1 (each as applicable), except to the extent permitted by the Act where applicable.
24.1 The failure by Alexys to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Alexys’ 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.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, Queensland, Victoria, Tasmania, Western Australia, South Australia, the Northern Territory, or the Australian Capital Territory (whichever being applicable) and are subject to the jurisdiction of the Ryde Local Court, New South Wales.
24.3 Subject to clause 16, Alexys 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 Alexys of these terms and conditions (alternatively Alexys’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.4 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 Alexys nor to withhold payment of any invoice because part of that invoice is in dispute.
24.5 Alexys may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
24.6 The Client agrees that Alexys may amend these terms and conditions at any time. If Alexys makes a change to these terms and conditions, then that change will take effect from the date on which Alexys notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Alexys to provide Goods to the Client.
24.7 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.
24.8 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.