1. Definitions
1.1 “QFE” means QFE Technologies Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of QFE Technologies Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by QFE to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between QFE and the Client in accordance with clause 6 below.
1.5 “Extra Work” means work authorised by the Client and carried out by QFE for which an extra charge is payable at QFE’s normal rates in addition to work accepted by the Client in a written quotation. Extra Work includes:
(a) service work undertaken on a ‘do and charge’ basis and is not necessarily specified as exclusions in any quotation;
(b) repairs and replacement parts, except in the event that such work is completed under warranty as agreed by QFE;
(c) system maintenance, unless otherwise agreed by QFE in writing.
1.6 “Site” means the address nominated by the Client where the Goods are to be delivered.
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 the Goods.
2.2 These terms and conditions may only be amended with QFE’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and QFE.
2.3 Where the Client is a tenant (and therefore not the owner of the Site) then the Client warrants that the Client has obtained the full consent of the owner for QFE to deliver the Goods to the Site. The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for all Goods supplied under this agreement, and to indemnify QFE against any claim made by the owner of the Site (howsoever arising) in relation to the supply of Goods by QFE, except where such claim has arisen because of the negligence of QFE when supplying the Goods.
3. Electronic Transactions (Queensland) Act 2001
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 (insert applicable section) of the Electronic Transactions Act (Queensland) 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Client shall give QFE not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by QFE as a result of the Client’s failure to comply with this clause.
5. Specifications
5.1 The Client acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in QFE’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 this agreement, unless expressly stated as such in writing by QFE.
5.2 The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use, as they are made to order and QFE offers no refund, either partially or fully, in the event of any cancellation by the Client.
5.3 The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, QFE reserves the right to substitute comparable Goods (or components thereof) and vary the Price as per clause 6.2. In all such cases QFE will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order on hold until such time as QFE and the Client agree to such changes.
6. Price and Payment
6.1 At QFE’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by QFE to the Client; or
(b) the Price as at the date of delivery of the Goods according to QFE’s current price list; or
(c) QFE’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of sixty (60) days.
6.2 QFE reserves the right to change the Price in the event of a variation to QFE’s quotation. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of Extra Work required due to the discovery of hidden or unidentifiable difficulties which are only discovered upon Delivery (such as any existing cabling which does not comply with Australian Standards and causes the new installation to be non-compliant), poor weather conditions, limitations to accessing the Site, obscured Site defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos), prerequisite work by any third party not being completed, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring, etc.), or due to increases to QFE in the cost of materials and labour (including additional transportation, packing, freight, storage, handling, insurance, or government, statutory or regulatory charges that relate to the supply of the Goods (if any)) which are beyond QFE’s control, will be detailed in writing and charged for on the basis of QFE’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
6.3 At QFE’s sole discretion a deposit may be required.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by QFE, which may be:
(a) before delivery of the Goods;
(b) by way of instalments/progress payments in accordance with QFE’s payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) the date which is thirty (30) days following the date of any invoice given to the Client by QFE; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by QFE.
6.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and QFE.
6.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to QFE an amount equal to any GST QFE must pay for any supply by QFE under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery and Installation
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that QFE (or QFE’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.2 At QFE’s sole discretion the cost of delivery is included in the Price.
7.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then QFE shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.4 QFE may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.5 Any time or date given by QFE to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and QFE will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7.6 Subject to clause 7.7 it is QFE’s responsibility to ensure that the Services start as soon as it is reasonably possible.
7.7 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that QFE claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond QFE’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 Services; or
(c) notify QFE that the site is ready.
7.8 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 Regulations 2002. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
8. Client’s Warranties
8.1 The Client:
(a) shall provide, at the Client’s cost, mains power connection so as to enable installation and/or service work to be undertaken at the Site. Any telecommunications connection required for the installation and/or maintenance of a security system will be arranged and paid for by the Client unless otherwise agreed in writing;
(b) warrants that all information supplied to QFE in connection with the supply of Goods is true and accurate, and acknowledges that QFE has relied on that information in supplying the Goods;
(c) acknowledges that while QFE may have provided information to the Client about the performance of the Goods generally, it has not made any representation or warranty concerning the performance of the Goods or the suitability of the Goods for the Site;
(d) warrants that notwithstanding sub-clause (c), the Client has not relied upon any representation or warranty convening the performance of the Goods or the suitability of the Site;
(e) warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that all electrical and plumbing infrastructure and installations at the Site, including but not limited to, meter boxes, main switches, circuit breakers, and electrical cable (“System”) are of suitable capacity to handle the Goods once installed, and comply with all laws, Acts, rules, regulations and codes and the requirements and directions of any relevant commonwealth, State and Local Government departments and other bodies (“Laws”). If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roofing), QFE reasonably forms the opinion that the Site is not safe for the Services to proceed then QFE shall be entitled to delay the Services (in accordance with the provisions of clause 7.7 above) until QFE is satisfied that it is safe to proceed;
(f) acknowledges that if the System is not compliant with all Laws, the Client may be required to repair or replace those parts of the System that are non-compliant at the Client’s own cost prior to Delivery.
9. Risk
9.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, QFE is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by QFE is sufficient evidence of QFE’s rights to receive the insurance proceeds without the need for any person dealing with QFE to make further enquiries.
9.3 If the Client requests QFE to leave Goods outside QFE’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
9.4 The Client acknowledges that QFE is only responsible for parts that are replaced by QFE, and in the event that other components/goods, subsequently fail, the Client agrees to indemnify QFE against any loss or damage to the goods, or caused by the goods, or any part thereof howsoever arising.
9.5 QFE shall accept no responsibility for any damage which may arise during installation of the power points, switches, data ports in the event that any third party contractor employed by the Client has removed any or all reference to the positioning thereof by either plastering or erecting GIB board over the designated area. The Client accepts that the installation thereof will then be at the sole discretion of QFE, and if the Client believes they have any claim in relation to the work undertaken by that third party then said claim must be made against the third party contractor in the first instance.
9.6 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify QFE immediately upon any proposed changes. The Client agrees to indemnify QFE against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 6.2.
9.7 In the event that QFE discovers asbestos/hazardous materials whilst supplying the Services, QFE shall immediately advise the Client of the same and shall be entitled to suspend the Services pending a risk assessment. The Client shall be liable for all additional costs incurred by QFE (howsoever arising) as a result of the discovery of asbestos/hazardous materials and/or any suspension of the Services in relation thereto. Where QFE agrees to remove any asbestos/hazardous materials on the Client’s behalf then the Client shall be liable for all costs incurred by QFE in the removal and disposal of those materials.
9.8 The Client agrees to indemnify QFE from any damage caused by any other tradesmen during and after the completion of the Services. If the Client instructs QFE to rectify any damage caused by any other tradesmen, this will be considered a variation to the Price as per clause 6.2 and will be charged at QFE’s normal hourly rate.
9.9 The Client accepts that all Goods and/or fire alarm systems, smoke detectors, heat detectors and any similar devices installed at or attached at the Site are:
(a) for monitoring and detection purposes only and should not be regarded as life saving devices; and
(b) do not guarantee that the Site will be free from fire damage or loss.
9.10 The Client shall be responsible:
(a) to ensure the fire alarm system equipment is tested and maintained to full operational condition; and
(b) for all phone calls emanating from the fire alarm system panel; and
(c) to ensure all electronically protected areas are free from obstacles which may impair the operation of the system.
9.11 The Client acknowledges that the provision of Goods and/or Services may not prevent fire from occurring at the Site, and accordingly the Client accepts that loss or damage to property, and death or injury to persons may occur even though QFE’s obligations under this agreement have been satisfied.
10. Access and Damage
10.1 The Client shall ensure that QFE has clear and free access to the Site at all times to enable them to affect Delivery. QFE shall not be liable for any loss or damage to the Site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of QFE. The Client agrees to ensure that the Site shall at all times be a safe working environment and (without limitation) shall not contain asbestos or any other such similar hazard of any infections or building disease.
10.2 The Client shall advise QFE in the event of any changed circumstances, or planned changes, to the Site which might affect QFE’s ability to affect Delivery in a safe manner.
10.3 QFE shall not be held responsible for any damage to dug up/cut cabling caused by outside agents. Where the Client requests QFE to provide additional Services where such damage occurs, then QFE reserves the right to charge the Client for any costs incurred in doing so.
11. Compliance with Laws
11.1 The Client and QFE shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable, including any work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
11.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required.
12. Underground Locations
12.1 Prior to Delivery, the Client must advise QFE of the precise location of all underground services on the Site and clearly mark the same. The underground mains and 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 the Site.
12.2 Whilst QFE will take all care to avoid damage to any underground services the Client agrees to indemnify QFE 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 12.1.
13. Title
13.1 QFE and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid QFE all amounts owing to QFE; and
(b) the Client has met all of its other obligations to QFE.
13.2 Receipt by QFE of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
13.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Goods and must return the Goods to QFE on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for QFE and must pay to QFE the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for QFE and must pay or deliver the proceeds to QFE on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of QFE and must sell, dispose of or return the resulting product to QFE as it so directs.
(e) the Client irrevocably authorises QFE to enter any premises where QFE believes the Goods are kept and recover possession of the Goods.
(f) QFE may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of QFE.
(h) QFE may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
14. Personal Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
14.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to QFE for Services – that have previously been supplied and that will be supplied in the future by QFE to the Client.
14.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which QFE may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 14.3 (a) (i) or 14.3 (ii);
(b) indemnify, and upon demand reimburse, QFE for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of QFE;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of QFE;
(e) immediately advise QFE of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
14.4 QFE and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
14.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3) (d) and 132(4) of the PPSA.
14.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by QFE, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Client must unconditionally ratify any actions taken by QFE under clauses 14.3 to 14.5.
14.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of QFE agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Client indemnifies QFE from and against all QFE’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising QFE’s rights under this clause.
15.3 The Client irrevocably appoints QFE and each director of QFE as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
16.1 The Client must inspect the Goods on delivery and must within thirty (30) days of delivery notify QFE in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow QFE to inspect the Goods.
16.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
16.3 QFE acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, QFE makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. QFE’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Client is a consumer within the meaning of the CCA, QFE’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If QFE is required to replace the Goods under this clause or the CCA, but is unable to do so, QFE may refund any money the Client has paid for the Goods.
16.7 If the Client is not a consumer within the meaning of the CCA, QFE’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by QFE at QFE’s sole discretion;
(b) limited to any warranty to which QFE is entitled, if QFE did not manufacture the Goods;
(c) otherwise negated absolutely.
16.8 Subject to this clause 16, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 16.1; and
(b) QFE has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, QFE shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by QFE;
(e) fair wear and tear, any accident, or act of God.
16.10 QFE may in its absolute discretion accept non-defective Goods for return in which case QFE may require the Client to pay handling fees of up to forty percent (40%) of the value of the returned Goods plus any freight costs.
16.11 Notwithstanding anything contained in this clause if QFE is required by a law to accept a return then QFE will only accept a return on the conditions imposed by that law.
17. Intellectual Property and Confidentiality
17.1 Where QFE has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of QFE.
17.2 The Client warrants that all designs, specifications or instructions given to QFE will not cause QFE to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify QFE against any action taken by a third party against QFE in respect of any such infringement.
17.3 The Client agrees that QFE may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which QFE has created for the Client.
17.4 Information provided by QFE to the Client in documentation is done so in confidence, and the Client agrees not to reproduce or provide said information in any manner to any third party without the prior written approval of QFE.
18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at QFE’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes QFE any money the Client shall indemnify QFE from and against all costs and disbursements incurred by QFE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, QFE’s contract default fee, and bank dishonour fees).
18.3 Further to any other rights or remedies QFE may have under this contract, if a Client has made payment to QFE by credit card, 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 QFE under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
18.4 Without prejudice to any other remedies QFE may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions QFE may suspend or terminate the supply of Goods to the Client. QFE will not be liable to the Client for any loss or damage the Client suffers because QFE has exercised its rights under this clause.
18.5 Without prejudice to QFE’s other remedies at law QFE shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to QFE shall, whether or not due for payment, become immediately payable if:
(a) any money payable to QFE becomes overdue, or in QFE’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
19. Cancellation
19.1 QFE may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice QFE shall repay to the Client any money paid by the Client for the Goods. QFE shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by QFE as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20. Privacy Act 1988
20.1 The Client agrees for QFE 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 QFE.
20.2 The Client agrees that QFE may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
20.3 The Client consents to QFE being given a consumer credit report to collect overdue payment on commercial credit.
20.4 The Client agrees that personal credit information provided may be used and retained by QFE for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
20.5 QFE may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
20.6 The information given to the CRB may include:
(a) personal information as outlined in 20.1 above;
(b) name of the credit provider and that QFE 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 QFE has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of QFE, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
20.7 The Client shall have the right to request (by e-mail) from QFE:
(a) a copy of the information about the Client retained by QFE and the right to request that QFE correct any incorrect information; and
(b) that QFE does not disclose any personal information about the Client for the purpose of direct marketing.
20.8 QFE will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
20.9 The Client can make a privacy complaint by contacting QFE via e-mail. QFE will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
21. Building and Construction Industry Payments Act 2004
21.1 At QFE’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 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 Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
22. General
22.1 The failure by QFE to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect QFE’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.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which QFE has its principal place of business, and are subject to the jurisdiction of the Beenleigh Courts in that state.
22.3 Subject to clause 16 QFE 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 QFE of these terms and conditions (alternatively QFE’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by QFE nor to withhold payment of any invoice because part of that invoice is in dispute.
22.5 QFE may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
22.6 The Client agrees that QFE may amend these terms and conditions at any time. If QFE makes a change to these terms and conditions, then that change will take effect from the date on which QFE notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for QFE to provide Goods to the Client.
22.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.