1. Definitions
1.1 “SWF” means SWF HOISTS AND INDUSTRIAL EQUIPMENT PTY LTD, trading as SWF Materials Handling, its successors and assigns or any
person acting on behalf of and with the authority of SWF HOISTS AND INDUSTRIAL EQUIPMENT PTY LTD.
1.2 “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.
1.3 “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.
1.4 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal
Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer
does not wish to allow Cookies to operate in the background when using SWF’s website, then the Customer shall have the right to enable
/ disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.5 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting SWF to provide the
Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors, and permitted assigns.
1.6 “Goods” means all Goods or Services supplied by SWF to the Customer at the Customer’s request from time to time (where the context so permits
the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.7 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.8 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between SWF and the Customer in accordance with
clause 7 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer
places an order for or accepts delivery of the Goods or Services.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have
entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Goods or Services on credit shall not take effect until the Customer has completed a credit
application with SWF and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods or Services requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms,
SWF reserves the right to refuse delivery.
2.6 Any advice, recommendation, information, assistance, or service provided by SWF in relation to Goods or Services supplied is given in good faith
to the Customer, or the Customer’s agent and is based on SWF’s own knowledge and experience and shall be accepted without liability on the part
of SWF. Where such advice or recommendations are not acted upon then SWF shall require the Customer or their agent to authorise
commencement of the Services in writing. SWF shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent
commencement of the Services.
2.7 The Customer acknowledges and accepts that:
(a) SWF shall be entitled to:
(i) retain any parts and/or consumables replaced during the provision of the Services;
(ii) the right to retain all proceeds obtained from the sale of such parts and/or consumables to any auto recycler or salvage yard; and
(b) 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, SWF
reserves the right to substitute comparable Goods (or consumables and/or parts of the Goods) and vary the Price as per clause 7.2. In all such
cases SWF will notify the Customer in advance of any such substitution, and reserves the right to place the Customer’s order and/or Goods on
hold until such time as SWF and the Customer agree to such changes; and
(c) in the event that the Goods and/or Services provided by SWF are the subject of an insurance claim that the Customer has made, then the
Customer 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 SWF and shall ensure payment is made by the due date irrespective of whether the insurance claim
is successful.
2.8 Where the Customer requesting or organising SWF to provide Services is acting with or on behalf of any third party and that third party is intended
to be responsible for the payment (or any part thereof) of the Price then in the event that the third party does not pay for the Services when due,
the Customer acknowledges that they shall be liable for the payment of the Price as if they had contracted the Services on their own behalf.
2.9 In the event that SWF is required to provide the Services urgently, that may require SWF’s staff to work outside normal business hours (including,
but not limited to, working through lunch breaks, weekends and/or Public Holidays) then SWF reserves the right to charge the Customer additional
labour costs (penalty rates will apply), unless otherwise agreed between SWF and the Customer.
2.10 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic
Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Specifications
3.1 The Customer acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions, ratings, and weights stated in SWF’s or manufacturer’s fact sheets, price
lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such
information, and any use of such does not constitute a sale by description, and does not form part of the Contract, unless expressly stated as
such in writing by SWF; and
(b) while SWF may have provided information or figures to the Customer regarding the performance of the Goods, the Customer acknowledges
that SWF has given these in good faith and are estimates based on industry prescribed estimates under optimal operating conditions.
4. Errors and Omissions
4.1 The Customer acknowledges and accepts that SWF 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 SWF 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 SWF in respect of the Services.
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 SWF; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4.3 In circumstances where the Customer is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions,
the Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order
for Goods (whether they are made to order Goods or not) (“Customer Error“). The Customer must pay for all Goods it orders from SWF
notwithstanding that such Goods suffer from a Customer Error and not withstanding that the Customer has not taken or refuses to take Delivery of
such Goods. SWF is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Customer Errors.
5. Change in Control
5.1 The Customer shall give SWF not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or
any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s,
change of trustees, or business practice). The Customer shall be liable for any loss incurred by SWF as a result of the Customer’s failure to comply
with this clause.
6. Credit Card Information
6.1 SWF will:
(a) keep the Customer’s personal details, including credit card details for only as long as is deemed necessary by SWF;
(b) not disclose the Customer’s credit card details to any third party;
(c) not unnecessarily disclose any of the Customer’s personal information, except is accordance with the Privacy Act (clause 20) or where required
by law.
6.2 The Customer expressly agrees that, if pursuant to this Contract, there are any unpaid charges, other amounts due and outstanding by the
Customer, SWF is entitled to immediately charge the Customer’s nominated credit card for these amounts, and is irrevocably authorised to complete
any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Customer pursuant to
the terms of this Contract.
7. Price and Payment
7.1 At SWF’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by SWF to the Customer; or
(b) SWF’s quoted Price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2 SWF reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, availability of
parts, further faults which are found upon disassembly and/or further inspection, work outside normal business hours, etc) which are only
discovered upon commencement of the Services; or
(d) in the event of increases to SWF in the cost of labour, Goods, parts, or fluctuations in currency exchange rates, which are beyond SWF’s
control; or
(e) if SWF has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to
the Customer irrespective of whether or not the repair goes ahead.
7.3 Variations will be charged for on the basis of SWF’s quotation, and will be detailed in writing, and shown as variations on SWF’s invoice. The
Customer shall be required to respond to any variation submitted by SWF within ten (10) working days. Failure to do so will entitle SWF 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.
7.4 At SWF’s sole discretion, a non-refundable deposit may be required.
7.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by SWF, which may be:
(a) on delivery of the Goods;
(b) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(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 Customer by SWF.
7.6 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 Customer and SWF.
7.7 SWF may in its discretion allocate any payment received from the Customer towards any invoice that SWF determines and may do so at the time
of receipt or at any time afterwards. On any default by the Customer SWF may re-allocate any payments previously received and allocated. In the
absence of any payment allocation by SWF, payment will be deemed to be allocated in such manner as preserves the maximum value of SWF’s
Purchase Money Security Interest (as defined in the PPSA) in the Goods.
7.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by SWF nor
to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is
in dispute, then the Customer must notify SWF in writing within three (3) business days, the invoice shall remain due and payable for the full
amount, until such time as SWF investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make
payment may result in SWF placing the Customer’s account into default and subject to default interest in accordance with clause 17.1.
7.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to SWF an amount equal to any GST
SWF must pay for any supply by SWF under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction
or set-off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any
other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
8. Delivery of Goods
8.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at SWF’s address; or
(b) SWF (or SWF’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
8.2 At SWF’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
8.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be Delivery to the Customer for the purposes of this Contract.
8.4 SWF 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.
8.5 Any time specified by SWF for Delivery of the Goods is an estimate only and SWF will not be liable for any loss or damage incurred by the Customer
because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time
and place as was arranged between both parties. If SWF is unable to supply the Goods as agreed solely due to any action or inaction of the
Customer, then SWF shall be entitled to charge a reasonable fee for redelivery and/or storage.
9. Risk
9.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, SWF is entitled to receive all
insurance proceeds payable for the Goods. The production of these terms and conditions by SWF is sufficient evidence of SWF’s rights to receive
the insurance proceeds without the need for any person dealing with SWF to make further enquiries.
9.3 If the Customer requests SWF to leave Goods outside SWF’s premises for collection or to deliver the Goods to an unattended location, then such
Goods shall be left at the Customer’s sole risk.
9.4 SWF shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer
acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, SWF accepts no responsibility for
any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.5 Where the Customer updates or upgrades any software or hardware that may interface with SWF’s Goods without advising SWF, the Customer
shall indemnify SWF of any loss or damage the Customer or the Customer’s property, or possessions may incur as a result of the Customer’s
failure to advise SWF of any such update or upgrade that may affect the effectiveness of Goods.
9.6 SWF shall take all reasonable care and skill when undertaking the Services (including where SWF or its employees (at SWF’s sole discretion)
carries out tests on the Goods/machinery); but no liability will be accepted by SWF for (and the Customer indemnifies SWF against) any damage
howsoever causes, except due to the express negligence of SWF or its employees.
9.7 The Customer warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any
electrical or hydraulic connections (including, but not limited to, meter boxes, main switches, circuit breakers, electrical cable, hoses and couplings)
are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring) that
SWF, or employees of SWF, reasonably form the opinion that the Customer’s premises is not safe for the installation of Goods to proceed then
SWF shall be entitled to delay installation of the Goods until SWF is satisfied that it is safe for the installation to proceed.
9.8 The Customer acknowledges and agrees that:
(a) SWF is only responsible for parts that are replaced by SWF and does not at any stage accept any liability in respect of previous services and/or
goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Customer agrees to indemnify SWF
against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising;
(b) where SWF has performed temporary repairs on the unit that:
(i) SWF offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(ii) SWF will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair of the damaged
unit; and
(c) Goods supplied may:
(i) expand, contract, or distort as a result of exposure to heat, cold, weather;
(ii) mark or stain if exposed to certain substances; and
(iii) be damaged or disfigured by impact or scratching.
9.9 SWF will not be liable whatsoever:
(a) where the parts have not been stored correctly, not used other than the intended purpose or not installed as properly by the Customer or a
third-party installer as per SWF or SWF’s recommendations;
(b) for any loss or damage to the Services that is caused by any other tradesmen after the completion of the Services;
(c) for delays caused by any other third-party suppliers and/or contractors that impacts on the provision of the Services by SWF;
(d) for any defect or damage resulting from incorrect or faulty installation carried out by any other third party.
9.10 If the Customer instructs SWF to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will
be charged at SWF’s normal hourly rate.
9.11 It is the Customer’s responsibility to ensure that the Customer’s machinery is insured against all possible damage (including, but not limited to, the
perils of accident, fire, theft and burglary and all other usual risks) whilst stored at SWF’s premises. The machinery is at all times stored and repaired
at the Customer’s sole risk.
10. Access
10.1 The Customer shall ensure that SWF always has clear and free access to the site to enable them to undertake the Services. SWF 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 SWF.
10.2 It is the responsibility of the Customer to ensure that access is suitable to accept the weight of laden trucks, hoist or other lifting equipment as may
be deemed necessary by SWF.
11. Compliance with Laws
11.1 The Customer and SWF shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities
that may be applicable to the Services.
11.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
11.3 The Customer agrees that the site will comply with any work health and safety (WHS) laws relating to work sites and any other relevant safety
standards or legislation.
Modern Slavery
11.4 For the purposes of clauses 11.4 to 11.9:
(a) “Act” means the Modern Slavery Act 2018 (cth)
(b) “Modern Slavery”, “Modern Slavery Statement” and “Reporting Entity” have the meanings given by the Act.
11.5 If the Customer is a Reporting Entity, it shall comply with all of its obligations under the Act.
11.6 Whether the Customer is a Reporting Entity or not, the Customer shall:
(a) use reasonable endeavours to identify, assess and address risks of Modern Slavery practices in its operations and supply chains;
(b) use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes
of the Contract have undertaken suitable training to identify and report Modern Slavery;
(c) use its reasonable endeavours to ensure that if at any time the Customer becomes aware of Modern Slavery practices in its operations and
supply chains, the Customer must as soon as reasonably practicable take all reasonable steps to address or remove these practices;
(d) provide to SWF a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and
(e) within seven (7) days of SWF’s request (or such longer period as SWF agrees), provide to SWF any information or assistance reasonable
requested by SWF;
(i) concerning the Customer’s compliance with the Act;
(ii) concerning the Customer’s operations and supply chains;
(iii) to enable SWF to prepare a Modern Slavery Statement or otherwise comply with the Act; or
(iv) to enable SWF to assess and address risks of Modern Slavery practices in its operations and supply chains.
11.7 The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach
by way of remediation and SWF will be able to terminate the Contract for any breach by the Customer.
11.8 The Customer warrants that any information supplied to SWF is true and accurate and may be relied upon for the purposes of the Act.
11.9 The Customer shall indemnify SWF against any loss or liability suffered by SWF as a result of the Customer’s breach of this clause 11.
12. Title
12.1 SWF and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid SWF all amounts owing to SWF; and
(b) the Customer has met all of its other obligations to SWF.
12.2 Receipt by SWF of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared
or recognised.
12.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 12.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to SWF on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for SWF and must pay to SWF the proceeds of any insurance
in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for
market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act
on trust for SWF and must pay or deliver the proceeds to SWF on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds
the resulting product on trust for the benefit of SWF and must sell, dispose of or return the resulting product to SWF as it so directs;
(e) the Customer irrevocably authorises SWF to enter any premises where SWF believes the Goods are kept and recover possession of the Goods;
(f) SWF may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while
they remain the property of SWF;
(h) SWF may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the
Customer.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a
security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be
supplied in the future by SWF to the Customer, and the proceeds from such Goods.
13.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all
respects) which SWF may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, SWF 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 SWF;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such
Goods in favour of a third party without the prior written consent of SWF;
(e) immediately advise SWF of any material change in its business practices of selling the Goods which would result in a change in proceeds
derived from such sales.
SWF and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and
conditions.
13.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by SWF, the Customer waives their right to receive a verification statement in accordance with section 157
of the PPSA.
13.8 The Customer must unconditionally ratify any actions taken by SWF under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to
have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of SWF agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land,
realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in
all of its present and after-acquired property for the purposes of, including but not limited to registering SWF’s security interest over the Customer
on the PPSA, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the
payment of any money).
14.2 The Customer indemnifies SWF from and against all SWF’s costs and disbursements including legal costs on a solicitor and own client basis
incurred in exercising SWF’s rights under this clause.
14.3 The Customer irrevocably appoints SWF and each director of SWF as the Customer’s true and lawful attorney/s to perform all necessary acts to
give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Customer must inspect the Goods on Delivery and must within eight (8) days of Delivery notify SWF in writing of any evident defect/damage,
shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as
reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow SWF to inspect the Goods.
15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and
warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded
Guarantees).
15.3 SWF acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, SWF makes no warranties or other
representations under these terms and conditions including but not limited to the quality or suitability of the Goods. SWF’s liability in respect of
these warranties is limited to the fullest extent permitted by law.
15.5 If the Customer is a consumer within the meaning of the CCA, SWF’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If SWF is required to replace the Goods under this clause or the CCA, but is unable to do so, SWF may refund any money the Customer has paid
for the Goods.
15.7 If the Customer is not a consumer within the meaning of the CCA, SWF’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by SWF at SWF’s sole discretion;
(b) limited to any warranty to which SWF is entitled, if SWF did not manufacture the Goods;
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 15.1; and
(b) SWF has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, SWF shall not be liable for any defect or damage which may be caused or partly
caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent
operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by SWF;
(e) fair wear and tear, any accident, or act of God.
15.10 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity
to inspect the second hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by
SWF as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer
acknowledges and agrees that SWF has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand
Goods in reliance of this clause 15.10.
15.11 SWF may in its absolute discretion accept non-defective Goods for return in which case SWF may require the Customer to pay handling fees of up
to ten percent (10%) of the value of the returned Goods plus any freight costs.
15.12 The conditions applicable to the warranty given on Goods supplied by SWF are contained on the “Warranty Documentation” that will be supplied
with the Goods or Services.
15.13 Notwithstanding anything contained in this clause if SWF is required by a law to accept a return, then SWF will only accept a return on the conditions
imposed by that law.
15.14 Subject to clause 15.1, customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit
or return.
16. Intellectual Property
16.1 Where SWF has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall
remain the property of SWF. Under no circumstances may such designs, drawings and documents be used without the express written approval
of SWF.
16.2 The Customer warrants that all designs, specifications, or instructions given to SWF will not cause SWF to infringe any patent, registered design
or trademark in the execution of the Customer’s order and the Customer agrees to indemnify SWF against any action taken by a third party against
SWF in respect of any such infringement.
16.3 The Customer agrees that SWF may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings
or Goods which SWF has created for the Customer.
17. Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half
percent (2.5%) per calendar month (and at SWF’s sole discretion such interest shall compound monthly at such a rate) after as well as before any
judgment.
17.2 If the Customer owes SWF any money, the Customer shall indemnify SWF from and against all costs and disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Customer would be liable;
in regard to legal costs on a solicitor and own client basis, internal administration fees, SWF’s Contract fees owing for breach of these terms and
conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
17.3 Further to any other rights or remedies SWF may have under this Contract, if a Customer has made payment to SWF, and the transaction is
subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by SWF
under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations
under this Contract.
17.4 Without prejudice to SWF’s other remedies at law SWF shall be entitled to cancel all or any part of any order of the Customer which remains
unfulfilled and all amounts owing to SWF shall, whether or not due for payment, become immediately payable if:
(a) any money payable to SWF becomes overdue, or in SWF’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by SWF;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an
assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
18. Cancellation
18.1 Without prejudice to any other remedies SWF may have, if at any time the Customer is in breach of any obligation (including those relating to
payment) under these terms and conditions SWF may suspend or terminate the supply of Goods to the Customer. SWF will not be liable to the
Customer for any loss or damage the Customer suffers because SWF has exercised its rights under this clause.
18.2 SWF may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered
by giving written notice to the Customer. On giving such notice SWF shall repay to the Customer any money paid by the Customer for the Goods.
SWF shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 If the Customer cancels Delivery of Goods, the Customer shall be liable for all losses incurred (whether direct or indirect) by SWF as a direct result
of the cancellation (including, but not limited to, any loss of profits).
18.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will not be accepted once production has
commenced, or an order has been placed.
19. Dispute Resolution
19.1 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.
20. Privacy Policy
20.1 All emails, documents, images, or other recorded information held or used by SWF is Personal Information, as defined and referred to in clause
20.3, and therefore considered Confidential Information. SWF 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”). SWF acknowledges that in the event it becomes
aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by SWF that may result in serious harm to the Customer,
SWF will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with
the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to SWF in respect of Cookies where the Customer utilises SWF’s website to make
enquiries. SWF 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 Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to SWF when SWF sends an email to the Customer, so SWF may collect and review that information (“collectively Personal
Information”)
If the Customer consents to SWF’s use of Cookies on SWF’s website and later wishes to withdraw that consent, the Customer may manage and
control SWF’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting
the site.
20.3 The Customer agrees that SWF may exchange information about the Customer with those credit providers and with related body corporates for
the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit
providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
20.4 The Customer consents to SWF being given a consumer credit report to collect personal credit information relating to any overdue payment on
commercial credit.
20.5 The Customer agrees that personal credit information provided may be used and retained by SWF for the following purposes (and for other agreed
purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
20.6 SWF may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
20.7 The information given to the CRB may include:
(a) Personal Information as outlined in 20.3 above;
(b) name of the credit provider and that SWF is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and
the amount requested);
(f) advice of consumer credit defaults (provided SWF is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts,
loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment
has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and SWF has
been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of SWF, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
20.8 The Customer shall have the right to request (by e-mail) from SWF:
(a) a copy of the Personal Information about the Customer retained by SWF and the right to request that SWF correct any incorrect Personal
Information; and
(b) that SWF does not disclose any Personal Information about the Customer for the purpose of direct marketing.
20.9 SWF will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations
of this Contract or is required to be maintained and/or stored in accordance with the law.
20.10 The Customer can make a privacy complaint by contacting SWF via e-mail. SWF will respond to that complaint within seven (7) days of receipt
and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Customer is not
satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
21. Unpaid Seller’s Rights
21.1 Where the Customer has left any item with SWF for repair, modification, exchange or for SWF to perform any other service in relation to the item
and SWF has not received or been tendered the whole of any monies owing to it by the Customer, SWF shall have, until all monies owing to SWF
are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected
goods.
21.2 The lien of SWF shall continue despite the commencement of proceedings, or judgment for any monies owing to SWF having been obtained against
the Customer.
22. Service of Notices
22.1 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.
22.2 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.
23. Trusts
23.1 If the Customer 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 SWF may have notice of the Trust, the Customer covenants with SWF as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport
to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of
indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of SWF (SWF will not unreasonably withhold consent), cause, permit, or suffer to happen any
of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
24. Building Industry Fairness (Security of Payment) Act 2017
24.1 At SWF’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building Industry Fairness
(Security of Payment) Act 2017 may apply.
24.2 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building Industry Fairness (Security of
Payment) Act 2017 of Queensland, except to the extent permitted by the Act where applicable.
25. General
25.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect
that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable
the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
25.2 These terms and conditions and any Contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction
of the courts in that state. These terms prevail over all terms and conditions of the Customer (even if they form part of the Customer’s purchase
order).
25.3 Subject to clause 15, SWF shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense
(including loss of profit) suffered by the Customer arising out of a breach by SWF of these terms and conditions (alternatively SWF’s liability shall
be limited to damages which under no circumstances shall exceed the Price of the Goods).
25.4 SWF may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
25.5 The Customer cannot licence or assign without the written approval of SWF.
25.6 SWF may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing.
Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of SWF’s sub-contractors without the
authority of SWF.
25.7 The Customer agrees that SWF may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing
such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or
otherwise at such time as the Customer makes a further request for SWF to provide Goods to the Customer.
25.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or
global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but
not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond
the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to SWF.
25.9 Both parties warrant that they have the power to enter 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.
25.10 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution
and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
