Terms and Conditions of Trade        1 March 2018

1. Definitions

1.1 “ComSpark” means McMillan Investments (WA) Pty Ltd T/A ComSpark, its successors and assigns or any person acting on behalf of and with the authority of McMillan Investments (WA) Pty Ltd T/A ComSpark.

1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting ComSpark to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:

(a)  if there is more than one Client, is a reference to each Client jointly and severally; and

(b)  if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

(c)  includes the Client’s executors, administrators, successors and permitted assigns.

1.3 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by ComSpark to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.4 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between ComSpark and the Client in accordance with clause 6 below. All prices are stated in Australian dollars ($AUD).

1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.

 

2. Acceptance

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 any Works.

2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and ComSpark.

2.3 Where the Client is an account holder then ComSpark reserves the right to request the Client to provide financial information as is reasonably required by ComSpark from time-to-time for the assessment of current and future credit limits only. ComSpark shall treat such information as being strictly confidential.

2.4 The Client acknowledges that the supply of Materials and/or Works on credit shall not take effect until the Client has completed a credit application with ComSpark and it has been approved with a credit limit established for the account. The Client agrees that ComSpark may make any necessary enquires and in conjunction with clause 22, to investigate the creditworthiness of the Client.

2.5 In the event that the supply of Works request exceeds the Client’s credit limit and/or the account exceeds the payment terms, ComSpark 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 Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

3. Errors and Omissions

3.1 The Client acknowledges and accepts that ComSpark 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 ComSpark 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 ComSpark in respect of the Works.

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 ComSpark; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

 

4. Change in Control

4.1 The Client shall give ComSpark not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by ComSpark as a result of the Client’s failure to comply with this clause.

 

5. Exclusions

5.1 Unless otherwise stated, quotations shall:

(a) exclude any allowance for site inductions which shall be chargeable as an additional cost;

(b) where stated as being “Budget Price” or “Budget Estimate” or wording with similar meaning are best estimates only and do not constitute   fixed Price offer;

(c) be priced based on the published Australian Electrical and Electronic Manufacturers' Association (AEEMA) copper index and relevant foreign currency exchange rates at the date of quotation. Where such fluctuations occur in this index or foreign currency exchange rates between date of quotation and acceptance can be treated as a variation as per clause 6.4(c);

(d) have no allowance for any payment that may be required to be made to any statutory body or other third party;

(e) be based on the site being free from asbestos and other toxic substances and should any such material be found that it is the Client’s responsibility to ensure the safe removal of the same;

(f) be based on the Client clearly providing, identifying and marking all necessary survey and datum points;

(g) be based on any excavation, trenching, backfill work, etc. by ComSpark being done by machine, and ComSpark shall reserve the right to charge for additional work where work is required to be completed by hand or where ComSpark encounters hard rock, shale, water during this process. Or where additional work is required to compact any fill by means other than gravity; and (h)  allow for additional charges where ComSpark is required to identify, break, remove, transport or dispose of rock, shale or water which costs shall be at the Client’s expense.

 

6. Price and Payment

6.1 At ComSparks sole discretion the Price shall be either: (a)  as indicated on invoices provided by ComSpark to the Client in respect of Works performed or Materials supplied; or (b)  ComSpark’s quoted Price (subject to clause 6.4) which shall be binding upon ComSpark provided that the Client shall accept ComSpark’s quotation in writing within fourteen (14) days however, ComSpark shall reserve the right to decline acceptance before commencement of any Works.

6.2 In regard to ComSpark’s written quotation, all descriptive specifications such as illustrations, drawings, dimensions and the like supplied by ComSpark are approximate only and are intended to act as a general descriptions of the Materials and/or Works and do not necessarily form part of the contract unless otherwise specified in the quotation.

6.3 The Client accepts that where site conditions change or plant and equipment requirements are altered after the initial quotation is presented; ComSpark shall be entitled to re-quote the Works on the new situation to reflect such changes.

6.4 ComSpark reserves the right to change the Price and where applicable request an extension of time (per clause 7.2) where a variation may impact on the time taken to complete the Works:

(a)  if a variation to the Materials which are to be supplied is requested; or

(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) including any additional costs incurred by ComSpark where the Client requests the acceleration of the existing work schedule (as per clause 7.3); or is requested; or

(c)  where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, changes to design, quantity, type, rating, brand, colour, location, hours of work, limitations to accessing the site, availability of machinery, and excavation issues, safety considerations and/or health hazards (such as the discovery of asbestos), fluctuation of raw material prices, existing wiring and or switchboard not being compliant, other site specific conditions, 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 Works; or

(d)  as a result of an increase in ComSpark’s costs due to changes in statutory, government, or local body charges, taxes, levies, etc. with respect to the Works, fluctuations in currency exchange rates or due to relevant industry awards (e.g. site allowance and severance pay), which are outside the control of ComSpark; or

(e)  where costs are levied by Distribution Network Supply Providers or other statutory authorities extra to those anticipated by ComSpark, the agreed Price will be varied accordingly.

6.5 Variations will be charged for on the basis of ComSpark’s quotation, and will be detailed in writing, and shown as variations on ComSpark’s invoice. The Client shall be required to respond to any variation submitted by ComSpark within ten (10) working days.  Failure to do so will entitle ComSpark 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.

6.6  At ComSpark’s sole discretion a non-refundable deposit may be required.

6.7 The Client accepts that payments tendered by the Client shall be applied as follows:

(a) firstly, as reimbursement for any contract default fee incurred by ComSpark;

(b) secondly, as payment for any interest charged to the Client; and

(c) thirdly, in satisfaction or part satisfaction of the oldest portion of the Client’s account.

6.8 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by ComSpark, which may be:

(a) the date specified on any invoice or other form as being the date for payment; or

(b) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by ComSpark.

6.9 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge will apply per transaction), or by any other method as agreed to between the Client and ComSpark.

6.10 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 ComSpark nor to withhold payment of any invoice because part of that invoice is in dispute.

6.11 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to ComSpark an amount equal to any GST ComSpark must pay for any supply by ComSpark under this or any other contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

 

7. Provision of the Works

7.1 Subject to clause 7.2 it is ComSpark’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2 The Client shall, within fourteen (14) days of accepting ComSpark’s quotation (unless otherwise agreed), hand the site over to ComSpark in order for the Works to commence. The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that ComSpark claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond ComSpark’s control, including but not limited to any event as per clause 29.4, or any failure by the Client to:

(a) make a selection; or

(b) have the site ready for the Works; or

(c)  notify ComSpark that the site is ready.

7.3 Unless otherwise stated, all work and the Price quoted is based on work being performed during ComSpark’s normal business hours of 7:30 am and 4:00 pm Monday to Friday.

7.4 In the event that ComSpark is required to provide the Works urgently, requiring ComSpark’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays), then ComSpark reserves the right to charge the Client additional labour costs (penalty rates will apply) as per clause 6.4(b), unless otherwise agreed between ComSpark and the Client.

7.5 At ComSpark’s sole discretion the cost of delivery is included in the Price.

7.6 ComSpark may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

7.7 The Client shall take delivery of the Materials tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:

(a) such discrepancy in quantity shall not exceed five percent (5%); and

(b) the Price shall be adjusted pro rata to the discrepancy.

7.8 Where the duration of the Works is longer than six (6) months from acceptance of the quotation, ComSpark shall be entitled to adjust the Price to compensate any rise or fall in the cost of Materials and/or labour.

7.9 Any time specified by ComSpark for delivery of the Works is an estimate only and ComSpark will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that ComSpark is unable to supply the Works as agreed solely due to any action or inaction of the Client, then ComSpark shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and ComSpark shall be entitled to charge a reasonable fee for redelivery and/or storage of any Materials.

7.10 Where scheduled work must be delayed or cancelled and no alternative work can be undertaken by ComSpark, then ComSpark shall be entitled to levy a cancellation fee based on man hours and Materials committed to the work at the time of cancellation as per clause 21.

 

8. Practical Completion

8.1 Unless agreed to in writing practical completion shall mean when the Works are completed except for any omissions or defects which do not prevent the Works from being reasonably capable of being used for their intended purpose, and the responsibility of ComSpark in respect of commissioning the Works shall be limited to proving conformance with the prevailing requirements as at the date of commencement of the Works of:

(a)  AS3000; and

(b)  any authority relating to the supply and use of electricity or electrical installations; and

(c)  any written specification provided by the Client as at the date of an associated quotation for the Works provided by ComSpark.

8.2 Sections of the Works will be handed over to the Client (or the Client’s representative) on site when the applicable stage is completed. The Client shall accept such sections, which shall thereafter be at the Client’s risk and deemed as practically completed. Where the Client requests ComSpark to suspend or delay the Works prior to completion of any stage, ComSpark shall hand over that section to the Client as per this clause 8.2.

 

9. Risk

9.1 If ComSpark retains ownership of the Materials under clause 15 then:

(a) where ComSpark is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by ComSpark or ComSpark’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address);

(b) the Client shall insure the Works in the joint names of the Client and ComSpark and shall maintain such insurance until completion of the Works;

(c) where ComSpark is to both supply and install Materials then ComSpark shall maintain Worker’s Compensation and Public Liability insurance (which shall cover ComSparks interests only) until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.

9.2 Notwithstanding the provisions of clause 9.1 if the Client specifically requests ComSpark to leave Materials outside ComSpark’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

9.3 ComSpark may at its discretion notify the Client that it requires to store at the work site Materials, fittings and appliances, or plant and tools required for the Works, in which event the Client shall supply ComSpark a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Client’s responsibility.

9.4 The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.

9.5 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 ComSpark immediately upon any proposed changes. The Client agrees to indemnify ComSpark against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 6.4.

9.6 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Act, Regulations and Code of Practices. All of the cabling work will comply with the Australian and New Zealand Wiring standards.

9.7 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, dangerous access to roofing), ComSpark reasonably forms the opinion that the Client’s premises is not safe for the installation of Materials to proceed then ComSpark shall be entitled to delay installation of the Materials (in accordance with clause 7.2) until ComSpark is satisfied that it is safe for the installation to proceed.

9.8 Where the Client has supplied materials for ComSpark to complete the Works, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. ComSpark shall not be responsible for any defects in the materials, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.

9.9 The Client acknowledges that ComSpark is only responsible for parts that are replaced by ComSpark, and in the event that other parts/Materials, subsequently fail, the Client agrees to indemnify ComSpark against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising.

9.10 The Client acknowledges and agrees that:

(a) ComSpark does not guarantee the performance or transmission speed or quality of any data; and

(b) transmission of data may be unavailable from time to time due to scheduled maintenance and/or upgrades to websites, servers or networks by third parties; and

(c) there are inherent hazards in electronic distribution and as such ComSpark cannot warrant against delays or errors in transmitting data between the Client and any person or entity the Client conducts communications with including orders, and you agree that ComSpark will not be liable for any losses which the Client suffers as a result of delays or errors in transmitting orders or other communications and/or documents.

9.11 The Client acknowledges that Materials supplied may:

(a) fade or change colour over time; and

(b) expand, contract or distort as a result of exposure to heat, cold, weather; and

(c) mark or stain if exposed to certain substances; and

(d) be damaged or disfigured by impact or scratching.

 

10. Client’s Responsibilities

10.1 It is the intention of ComSpark, and agreed by the Client, that it is the responsibility of the Client to:

(a) ensure that Materials specified are of the correct size, type, colour, quality and finish as shown in specifications, drawings or plans where the Client is supplying the materials;

(b) ensure that ComSpark has clear and free access to the site at the agreed date/s and time/s to enable them to undertake the Works. ComSpark 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 ComSpark’s negligence;

(c) have all areas clean and clear, and remove any furniture, furnishings or personal goods (including glassware, crockery, pot plants and ornaments, etc.) from the vicinity of the Works to enable the scheduled Works to be completed in accordance with the agreed schedule. ComSpark shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause, and if the Works are interrupted by the failure of the Client to adhere to the schedule agreed to between ComSpark and the Client, any additional costs will be invoiced to the Client as a variation in accordance with clause 6.4;

(d) provide ComSpark with facilities, as specified by ComSpark, (including, but not limited to, a suitable free power source, ablutions, lighting, hoisting, etc.) for the duration of the Works, and such facilities shall be compliant with all applicable statutes, regulations and by-laws;

(e) provide and have erected scaffolding to enable the Works to be undertaken (where in ComSpark’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;

(f) allocate an area (per level) for the accumulation and removal of any rubbish created from the provision of the Works by ComSpark, and the removal of such rubbish shall be at the Client’s expense; and

(g) make good all finished surfaces, including, but not limited to, ceiling tiles and panels, face brickwork and rendered masonry surfaces, which ComSpark may reasonably have to break into or disturb in performance of the Works, unless otherwise agreed to.

 

11. Plans, Measurements and Specifications

11.1 ComSpark shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, ComSpark accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

11.2 The Client acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in ComSpark’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client 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 ComSpark.

11.3 The Client shall be responsible for ensuring that the Materials ordered are suitable for their intended use.

 

12. Surplus Materials

12.1 Unless otherwise stated elsewhere in this contract:

(a) demolished Materials remain the Client’s property; and

(b) Materials which ComSpark brings to the site which are surplus remain the property of ComSpark.

 

13. Underground Locations

13.1 Prior to ComSpark commencing any work the Client must advise ComSpark of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

13.2 Whilst ComSpark will take all care to avoid damage to any underground services the Client agrees to indemnify ComSpark 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 13.1.

 

14. Compliance with Laws

14.1 The Client and ComSpark 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, but not limited to:

(a) AS/NZS 4836:2001 for ‘Safe Working on Low Voltage Electrical Installations’ relating to work on or near live conductors which may require isolation and/or disconnection work that will be charged in addition to the quoted Price unless otherwise stated;

(b) Works performed under Safe Work Method Statements (SWMS) and Job Safety Analysis (JSA) where such documentation is required to be completed prior to commencement of the Works, with the Client accepting that conduct of the necessary inspections and documents are chargeable.

14.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

14.3 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.

 

15. Title

15.1 ComSpark and the Client agree that ownership of the Materials shall not pass until:

(a) the Client has paid ComSpark all amounts owing to ComSpark; and

(b) the Client has met all of its other obligations to ComSpark.

15.2 Receipt by ComSpark 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.

15.3 It is further agreed that:

(a) until ownership of the Materials passes to the Client in accordance with clause 15.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to ComSpark on request.

(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for ComSpark and must pay to ComSpark the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.

(c) the production of these terms and conditions by ComSpark shall be sufficient evidence of ComSpark’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with ComSpark to make further enquiries.

(d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for ComSpark and must pay or deliver the proceeds to ComSpark on demand.

(e) the Client should not convert or process the Materials 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 ComSpark and must sell, dispose of or return the resulting product to ComSpark as it so directs.

(f) unless the Materials have become fixtures the Client irrevocably authorises ComSpark to enter any premises where ComSpark believes the Materials are kept and recover possession of the Materials.

(g) ComSpark may recover possession of any Materials in transit whether or not delivery has occurred.

(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of ComSpark.

(i) ComSpark may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

 

16. Personal Property Securities Act 2009 (“PPSA”)

16.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

16.2 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 Materials and/or collateral (account) – being a monetary obligation of the Client to ComSpark for Works – that have previously been supplied and that will be supplied in the future by ComSpark to the Client.

16.3  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 ComSpark 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 16.3(a)(i) or 16.3(a)(ii);

(b) indemnify, and upon demand reimburse, ComSpark 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 Materials charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of ComSpark;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of ComSpark;

(e) immediately advise ComSpark of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.

16.4 ComSpark 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.

16.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

16.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

16.7 Unless otherwise agreed to in writing by ComSpark, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.

16.8 The Client shall unconditionally ratify any actions taken by ComSpark under clauses 16.3 to 16.5.

16.9  Subject to any express provisions to the contrary (including those contained in this clause 16) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

17. Security and Charge

17.1 In consideration of ComSpark agreeing to supply the Works, 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).

17.2 The Client indemnifies ComSpark from and against all ComSpark’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ComSpark’s rights under this clause.

17.3 The Client irrevocably appoints ComSpark and each director of ComSpark as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.

 

18. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

18.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within fourteen (14) days from completion of the Works notify ComSpark 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 Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow ComSpark to inspect the Materials or to review the Works provided. ComSpark must be given first right of refusal before the Client engages a third party to perform any remedial work.

18.2 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).

18.3 ComSpark acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

18.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, ComSpark makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. ComSpark’s liability in respect of these warranties is limited to the fullest extent permitted by law.

18.5 If the Client is a consumer within the meaning of the CCA, ComSpark’s liability is limited to the extent permitted by section 64A of Schedule 2.

18.6 If ComSpark is required to replace any Materials under this clause or the CCA, but is unable to do so, ComSpark may refund any money the Client has paid for the Materials.

18.7 If ComSpark is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then ComSpark may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.

18.8 If the Client is not a consumer within the meaning of the CCA, ComSpark’s liability for any defect or damage in the Materials is:

(a) limited to the value of any express warranty or warranty card provided to the Client by ComSpark at ComSpark’s sole discretion;

(b) limited to any warranty to which ComSpark is entitled, if ComSpark did not manufacture the Materials;

(c) otherwise negated absolutely.

18.9 Subject to this clause 18, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 18.1; and

(b) ComSpark has agreed that the Materials are defective; and

(c) the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and

(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.

18.10 Notwithstanding clauses 18.1 to 18.9 but subject to the CCA, ComSpark 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 Materials;

(b) the Client using or misusing the Materials for any purpose other than that for which they were designed;

(c) the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) interference with the Works by the Client or any third party without ComSpark’s prior approval;

(e) the Client failing to follow any instructions or guidelines provided by ComSpark;

(f) any defects or failures attributable to the activities of other trades, structural loads, vandalism or other acts and/or circumstances beyond the control of ComSpark;

(g) fair wear and tear, any accident, or act of God.

18.11 Notwithstanding anything contained in this clause if ComSpark is required by a law to accept a return then ComSpark will only accept a return on the conditions imposed by that law.

 

19. Intellectual Property

19.1 Where ComSpark has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in ComSpark, and shall only be used by the Client at ComSpark’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of ComSpark.

19.2 The Client warrants that all designs, specifications or instructions given to ComSpark will not cause ComSpark to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify ComSpark against any action taken by a third party against ComSpark in respect of any such infringement.

19.3 The Client agrees that ComSpark may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which ComSpark has created for the Client.

 

20. Default and Consequences of Default

20.1 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 ComSpark’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

20.2 If the Client owes ComSpark any money the Client shall indemnify ComSpark from and against all costs and disbursements incurred by ComSpark in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ComSpark’s contract default fee, and bank dishonour fees).

20.3 Further to any other rights or remedies ComSpark may have under this contract, if a Client has made payment to ComSpark, 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 ComSpark under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.

20.4 Without prejudice to ComSpark’s other remedies at law ComSpark shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to ComSpark shall, whether or not due for payment, become immediately payable if:

(a) any money payable to ComSpark becomes overdue, or in ComSpark’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client has exceeded any applicable credit limit provided by ComSpark;

(c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

21. Cancellation

21.1 Without prejudice to any other remedies ComSpark may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions ComSpark may suspend or terminate the supply of Works to the Client. ComSpark will not be liable to the Client for any loss or damage the Client suffers because ComSpark has exercised its rights under this clause.

21.2 Either party may give notice of cancelling this contract in the event of any delay to the Works (including any provision of clause 7.2) continuing without remedy for six (6) months or more. The cancellation of this contract under this clause shall not limit the rights or obligations of the parties under this contract up to the date of such cancellation. Furthermore:

(a) on giving such notice ComSpark shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to ComSpark for Works already performed. ComSpark shall not be liable for any loss or damage whatsoever arising from such cancellation; or

(b) the Client shall be liable for any and all loss incurred (whether direct or indirect) by ComSpark as a direct result of their cancellation of the contract (including, but not limited to, all work performed to date and a sum of twenty percent (20%) of the agreed Price of the total work for profit, overheads and inconvenience).

21.3 Cancellation of orders for products 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.

 

22. Privacy Act 1988

22.1 The Client agrees for ComSpark 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 ComSpark.

22.2 The Client agrees that ComSpark 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.

22.3 The Client consents to ComSpark being given a consumer credit report to collect overdue payment on commercial credit.

22.4 The Client agrees that personal credit information provided may be used and retained by ComSpark for the following purposes (and for other agreed purposes or required by):

(a) the provision of Works; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; 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 Works.

22.5 ComSpark 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.

22.6 The information given to the CRB may include:

(a) personal information as outlined in 22.1 above;

(b) name of the credit provider and that ComSpark 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 ComSpark has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);

(g) information that, in the opinion of ComSpark, 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).

22.7 The Client shall have the right to request (by e-mail) from ComSpark:

(a) a copy of the information about the Client retained by ComSpark and the right to request that ComSpark correct any incorrect information; and

(b)  that ComSpark does not disclose any personal information about the Client for the purpose of direct marketing.

22.8 ComSpark will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.

22.9 The Client can make a privacy complaint by contacting ComSpark via e-mail. ComSpark 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.

 

23. Confidentiality

23.1 The Client shall be secret and confidential and shall not disclose to any third party without the prior written consent of ComSpark any information, data, specification, drawings, reports, accounts or other documents and things supplied or made available by ComSpark to the Client or brought into existence by ComSpark for the purpose of performance of the Works as agreed and the Client shall take or cause to be taken such reasonable precautions as may be necessary to maintain secrecy, confidentiality and prevent disclosure, including obtaining confidentiality contracts from its employees, agents and subcontractors.

23.2 In particular, quotations are confidential between ComSpark and the Client. ComSpark retains the rights to, and ownership of, the quotation documentation which the Client shall not at any time disclose in any form to any third party or to any of the Client’s personnel not directly involved in the decision to engage ComSpark for the provision of the quoted Works or any resulting contract administration.

 

24. Employees, Subcontractors and Agents of ComSpark

24.1 The Client agrees not to employ, contract, subcontract or utilise in any way an employee, past employee, subcontractor or agent of ComSpark (other than through ComSpark) for a period of no less than twelve (12) months after that employee’s last employment/contract with ComSpark.

24.2 The Client agrees that if clause 24.1 is contravened ComSpark will be able to invoice the Client at its current hourly rate the hours that the employee, subcontractor or agent has been employed, contracted, subcontracted or utilised in any way by the Client and agrees to pay said invoice in accordance with the standard payment terms contained in this contract.

 

25. Dispute Resolution

25.1 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.

 

26. Construction Contracts Act 2004

26.1 At ComSpark’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Construction Contracts Act 2004 may apply.

26.2 Nothing in this contract is intended to have the effect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia, except to the extent permitted by the Act where applicable.

 

27. Service of Notices

27.1 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 facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

27.2 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.

 

28. Trusts

28.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any Trust (“Trust”) then whether or not ComSpark may have notice of the Trust, the Client covenants with ComSpark as follows:

(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;

(c) the Client will not without consent in writing of ComSpark (ComSpark will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

(i)   the removal, replacement or retirement of the Client 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.

 

29. General

29.1 The failure by ComSpark to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect ComSpark’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.

29.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia in which ComSpark has its principal place of business, and are subject to the jurisdiction of the courts in Perth, Western Australia.

29.3 Subject to clause 18, ComSpark 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 ComSpark of these terms and conditions (alternatively ComSpark’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

29.4 ComSpark may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

29.5 The Client cannot licence or assign without the written approval of ComSpark.

29.6 ComSpark may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of ComSpark’s sub-contractors without the authority of ComSpark.

29.7 The Client agrees that ComSpark may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for ComSpark to provide Works to the Client.

29.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, explosion, fire, flood, storm or other event (including regulations or orders of any statutory authority or other bodies) beyond the reasonable control of either party.

29.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.

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