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 “Acacia Group” means Acacia Group Commercial Pty Ltd ATF A & E Myhill Family Trust T/A Acacia Group, its successors and assigns or any person acting on behalf of and with the authority of Acacia Group Commercial Pty Ltd ATF A & E Myhill Family Trust T/A Acacia Group.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Acacia Group 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 partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by Acacia Group 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).
1.5 “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 Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Works via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between Acacia Group and the Client in accordance with clause 6 below.
1.8 “Site” means the address nominated by the Client at which the Works are to be undertaken by Acacia Group.
1.9 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
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 Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with Acacia Group and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Works request exceeds the Clients credit limit and/or the account exceeds the payment terms, Acacia Group reserves the right to refuse delivery.
2.6 In the event that the Materials and/or Works provided by Acacia Group are the subject of an insurance claim that the Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by Acacia Group and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 applicable of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.1 The Client acknowledges and agrees that any quotation offered by Acacia Group to the Client excludes the following, unless otherwise agreed in writing between both parties;
(a) any alterations or rectifications to ceilings, or existing building services; and
(b) any work required to be undertaken outside normal working hours; and
(c) any associated engineering fees; and
(d) any allowance for drawing up or submission of drawings, building or development application, or any other relevant approvals to council or government; and
(e) any provision for any alteration to or supply of lighting, power points and/or electrical installations, or sprinkler systems, plumbing or air-conditioning; and
(f) any preparation of building services for painting; and
(g) any painting of any building services; and
(h) any preparation or repairs to flooring surfaces or any alteration hereto.
3.2 Furthermore, the Client acknowledges and accepts that all measures quoted are approximate only. Materials (including, but not limited to colours, anodising, fabrics, glazing) will nearest to what is commercially available (in all and any respects) to the selected or offered in the quotation. All Works shall be carried out in accordance with the quotation, any deviation in the Works that may occur subject to building mullions, pillars and ceilings, will be treated as a variation in accordance with clause 6.2.
4. Errors and Omissions
4.1 The Client acknowledges and accepts that Acacia Group 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 Acacia Group 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 Acacia Group in respect of the Works.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of Acacia Group; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Client shall give Acacia Group 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 and contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by Acacia Group as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At Acacia Group’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Acacia Group to the Client in respect of Works performed or Materials supplied; or
(b) Acacia Group’s quoted Price (subject to clause 6.2) which shall be binding upon Acacia Group provided that the Client shall accept Acacia Group’s quotation in writing within thirty (30) days.
6.2 Acacia Group reserves the right to change the Price:
(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) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, inclement weather, obscured site defects, required prerequisite work not completed, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring/cabling, etc.) which are only discovered on commencement of the Works; or
(d) as a result of an increase in Acacia Group’s costs due to changes in statutory, government, or local body charges, taxes, levies, etc. with respect to the Works, increases to Acacia Group in the cost of labour or Materials or due to relevant industry awards (e.g. site allowance and severance pay), which are outside the control of Acacia Group.
6.3 Variations will be charged for on the basis of Acacia Group’s quotation, and will be detailed in writing, and shown as variations on Acacia Group’s invoice. The Client shall be required to respond to any variation submitted by Acacia Group within ten (10) working days. Failure to do so will entitle Acacia Group 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.
6.4 At Acacia Group’s sole discretion a non-refundable deposit may be required.
6.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Acacia Group, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with Acacia Group’s specified progress 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; or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Acacia Group.
6.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Acacia Group.
6.7 Acacia Group may in its discretion allocate any payment received from the Client towards any invoice that Acacia Group determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Acacia Group may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Acacia Group, payment will be deemed to be allocated in such manner as preserves the maximum value of Acacia Group’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
6.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Acacia Group nor to withhold payment of any invoice because part of that invoice is in dispute.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Acacia Group an amount equal to any GST Acacia Group must pay for any supply by Acacia Group 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 Acacia Group’s responsibility to ensure that the Works start as soon as it is reasonably possible.
7.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Acacia Group claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Acacia Group’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify Acacia Group that the site is ready.
7.3 At Acacia Group’s sole discretion, the cost of delivery is included in the Price.
7.4 Acacia Group 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.
7.5 Any time specified by Acacia Group for delivery of the Works is an estimate only and Acacia Group 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 Acacia Group is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Acacia Group shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.
8.1 If Acacia Group retains ownership of the Materials under clause 9 then:
(a) where Acacia Group 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 either:
(i) the Client or the Client’s nominated carrier takes possession of the Materials at Acacia Group’s address; or
(ii) the Materials are delivered by Acacia Group or Acacia Group’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(b) where Acacia Group is to both supply and install Materials then Acacia Group shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
8.2 Notwithstanding the provisions of clause 8.1 if the Client specifically requests Acacia Group to leave Materials outside Acacia Group’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.
8.3 The Client acknowledges and agrees that where Acacia Group has performed temporary repairs that, Acacia Group:
(a) offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(b) will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required.
8.4 The Client acknowledges that:
(a) Acacia Group is only responsible for Materials that are replaced by Acacia Group and does not at any stage accept any liability in respect of previous Materials and/or Works supplied by any other third party that subsequently fail and found to be the source of the failure;
(b) where the Client has supplied Materials for Acacia Group to complete the Works, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in those Materials;
(c) Acacia Group shall not be liable for any loss or damage to the Works (or any part thereof) howsoever arising where sub-clauses (a) and (b) and applies;
(d) the Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and that any plumbing connections (including, but not limited to, pipes, couplings and valves, etc.) are of suitable capacity to handle the Materials once installed;
(e) under no circumstances, will Acacia Group handle removal of asbestos product. In the event asbestos (or other hazardous material) is discovered on Site:
(i) Acacia Group shall suspend the Works as per clause 7.2; and
(ii) the Client shall be fully responsible for the resolution of any resulting problems; and
(iii) any additional cost incurred by Acacia Group shall be added to the Price under clause 6.2.
9. Client’s Responsibilities
9.1 Prior to Acacia Group commencing the Works the Client must advise Acacia Group of the precise location of all Works on the Site and clearly mark the same. The mains and Works the Client must identify include, but are not limited to, electrical Works, gas Works, sewer Works, pumping Works, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other Works that may be on the Site. Whilst Acacia Group will take all care to avoid damage to any underground Works, the Client agrees to indemnify Acacia Group in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to Works not precisely located and notified as per this clause 9.1.
9.2 It is the intention of Acacia Group, and agreed by the Client, that it is the responsibility of the Client to:
(a) ensure that Acacia Group has clear and free access to the Site at the agreed date/s and time/s to enable Acacia Group to undertake the Works. Acacia Group 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 Acacia Group’s negligence;
(b) provide Acacia Group with facilities, as specified by Acacia Group, (including, but not limited to, a suitable free power source) for the duration of the Works;
9.3 Site Inductions
(c) in the event the Client requires an employee or sub-contractor of Acacia Group to undertake a Site induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction is needs to be undertaken prior to the commencement date then the Client shall be liable to pay Acacia Group’s standard (and/or overtime, if applicable) hourly labour rate; or
(d) where Acacia Group is in control of the Site, the Client and/or the Clients third party contractors must initially carry out Acacia Group’s Health & Safety induction course before access to the Site will be granted. Inspection of the Site during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by Acacia Group.
10. Compliance with Laws
10.1 The Client and Acacia Group 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.
10.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
11.1 Acacia Group and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid Acacia Group all amounts owing to Acacia Group; and
(b) the Client has met all of its other obligations to Acacia Group.
11.2 Receipt by Acacia Group 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.
11.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 11.1:
(a) the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Acacia Group on request;
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for Acacia Group and must pay to Acacia Group 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 Acacia Group shall be sufficient evidence of Acacia Group’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Acacia Group 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 Acacia Group and must pay or deliver the proceeds to Acacia Group 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 Acacia Group and must sell, dispose of or return the resulting product to Acacia Group as it so directs;
(f) unless the Materials have become fixtures the Client irrevocably authorises Acacia Group to enter any premises where Acacia Group believes the Materials are kept and recover possession of the Materials;
(g) Acacia Group 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 Acacia Group;
(i) Acacia Group may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 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 Acacia Group for Works – that have previously been supplied and that will be supplied in the future by Acacia Group to the Client.
12.3 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 Acacia Group 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 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, Acacia Group 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 Acacia Group;
(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 Acacia Group;
(e) immediately advise Acacia Group 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.
12.4 Acacia Group 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.
12.5 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.
12.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by Acacia Group, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Client shall unconditionally ratify any actions taken by Acacia Group under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of Acacia Group agreeing to supply the Materials, 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).
13.2 The Client indemnifies Acacia Group from and against all Acacia Group’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Acacia Group’s rights under this clause.
13.3 The Client irrevocably appoints Acacia Group and each director of Acacia Group as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify Acacia Group 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 Acacia Group to inspect the Materials or to review the Works provided.
14.2 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).
14.3 Acacia Group acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Acacia Group makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. Acacia Group’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Client is a consumer within the meaning of the CCA, Acacia Group’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If Acacia Group is required to replace any Materials under this clause or the CCA, but is unable to do so, Acacia Group may refund any money the Client has paid for the Materials.
14.7 If Acacia Group 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 Acacia Group 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.
14.8 If the Client is not a consumer within the meaning of the CCA, Acacia Group’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 Acacia Group at Acacia Group’s sole discretion;
(b) limited to any warranty to which Acacia Group is entitled, if Acacia Group did not manufacture the Materials;
(c) otherwise negated absolutely.
14.9 Subject to this clause 14, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 14.1; and
(b) Acacia Group 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.
14.10 Notwithstanding clauses 14.1 to 14.9 but subject to the CCA, Acacia Group 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 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 Acacia Group’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by Acacia Group;
(f) fair wear and tear, any accident, or act of God.
14.11 Acacia Group may in its absolute discretion accept non-defective Materials for return in which case Acacia Group may require the Client to pay handling fees of up to twenty-five percent (25%) of the value of the returned Materials plus any freight costs.
14.12 Notwithstanding anything contained in this clause if Acacia Group is required by a law to accept a return then Acacia Group will only accept a return on the conditions imposed by that law.
14.13 Subject to clause 14.1, customised, or non-stocklist items or Materials made or ordered to the Client’s specifications are not acceptable for credit or return.
15. Intellectual Property
15.1 Where Acacia Group 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 Acacia Group, and shall only be used by the Client at Acacia Group’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Acacia Group.
15.2 The Client warrants that all designs, specifications or instructions given to Acacia Group will not cause Acacia Group to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Acacia Group against any action taken by a third party against Acacia Group in respect of any such infringement.
15.3 The Client agrees that Acacia Group may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Acacia Group has created for the Client.
16. Default and Consequences of Default
16.1 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 Acacia Group’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes Acacia Group any money the Client shall indemnify Acacia Group from and against all costs and disbursements incurred by Acacia Group in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Acacia Group’s contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies Acacia Group may have under this Contract, if a Client has made payment to Acacia Group, 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 Acacia Group under this clause 16 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.
16.4 Without prejudice to Acacia Group’s other remedies at law Acacia Group shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Acacia Group shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Acacia Group becomes overdue, or in Acacia Group’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 Acacia Group;
(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.
17.1 Without prejudice to any other remedies Acacia Group may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Acacia Group may suspend or terminate the supply of Works to the Client. Acacia Group will not be liable to the Client for any loss or damage the Client suffers because Acacia Group has exercised its rights under this clause.
17.2 Acacia Group may cancel any Contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice Acacia Group shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Acacia Group for Works already performed. Acacia Group shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Acacia Group as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.4 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.
18.1 All emails, documents, images or other recorded information held or used by Acacia Group is Personal Information, as defined and referred to in clause 18.3, and therefore considered Confidential Information. Acacia Group 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”). Acacia Group acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by Acacia Group that may result in serious harm to the Client, Acacia Group will notify the Client 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 Client by written consent, unless subject to an operation of law.
18.2 Notwithstanding clause 18.1, privacy limitations will extend to Acacia Group in respect of Cookies where transactions for purchases/orders transpire directly from Acacia Group’s website. Acacia Group agrees to display 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 Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Acacia Group when Acacia Group sends an email to the Client, so Acacia Group may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Client 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 Acacia Group’s website.
18.3 The Client agrees for Acacia Group 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 Client in relation to credit provided by Acacia Group.
18.4 The Client agrees that Acacia Group 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 (2) years.
18.5 The Client consents to Acacia Group being given a consumer credit report to collect overdue payment on commercial credit.
18.6 The Client agrees that personal credit information provided may be used and retained by Acacia Group 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.
18.7 Acacia Group 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.
18.8 The information given to the CRB may include:
(a) Personal Information as outlined in 18.3 above;
(b) name of the credit provider and that Acacia Group 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 Acacia Group has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Acacia Group, 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).
18.9 The Client shall have the right to request (by e-mail) from Acacia Group:
(a) a copy of the Personal Information about the Client retained by Acacia Group and the right to request that Acacia Group correct any incorrect Personal Information; and
(b) that Acacia Group does not disclose any Personal Information about the Client for the purpose of direct marketing.
18.10 Acacia Group 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.
18.11 The Client can make a privacy complaint by contacting Acacia Group via e-mail. Acacia Group 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.
19. Service of Notices
19.1 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.
19.2 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.
20.1 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 Acacia Group may have notice of the Trust, the Client covenants with Acacia Group 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 Acacia Group (Acacia Group 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.
21. Building and Construction Industry Security of Payments Act 1999
21.1 At Acacia Group’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
21.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
22.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, arbitration in accordance with the Commercial Arbitration Act 2010 or its replacement(s).
22.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales the state in which Acacia Group has its principal place of business, and are subject to the jurisdiction of the courts in that state.
22.4 Subject to clause 14, Acacia Group 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 Acacia Group of these terms and conditions (alternatively Acacia Group’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
22.5 Acacia Group may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
22.6 The Client cannot licence or assign without the written approval of Acacia Group.
22.7 Acacia Group 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 Acacia Group’s sub-contractors without the authority of Acacia Group.
22.8 The Client agrees that Acacia Group may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to 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 Acacia Group to provide Works to the Client.
22.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.10 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.