1.1. Amounts Owing means all amounts owing by the Buyer and any of its Related Bodies Corporate to Com 1 on any account or in any capacity;
1.2. Buyer means the persons (including its/their successors, personal representatives and permitted assigns) acquiring Supply from Com 1 and where the Buyer is a company means that company and each of its Related Bodies Corporate. Where there is more than one Buyer, the covenants on their part contained herein shall be deemed to be joint and several covenants;
1.3. Contract means the agreement for the sale of Goods and Equipment as set out between Com 1 and the Buyer and which specifically includes the Quotation, these Terms and Com 1’s order acknowledgement (if any);
1.4. Equipment means computer hardware, accessories and associated software (as applicable) as specified in the Quotation;
1.5. Goods means all goods, Equipment and other personal property to be sold, leased, hired or otherwise supplied by Com 1 to the Buyer under the Contract;
1.6. Quotation means the quotation issued by Com 1 for each transaction incorporating Com 1 Terms specific to that supply including (a) terms for the supply of Equipment by way of sale, on credit, lease or free on loan; and (b) any statement of work (SOW) describing services to be delivered (as applicable);
1.7. Related Body Corporate has the meaning it has in the Corporations Act 2001 (Cth);
1.8. Com 1 means each of Com 1 Australia Pty Ltd (ACN 074 912 011), and any other Australian affiliate of Com 1 Australia Pty Ltd from time to time that submits the Quotation (as applicable);
1.9. Services means the services to be performed under the Contract (and as described in a SOW incorporated into a Quotation);
1.10. SOW means a statement of work which describes Goods and Services to be supplied by Com 1;
1.11. Specification means any specification, product information sheet or safety data sheet furnished by Com 1 to the Buyer or referred to in the Quotation in respect of the Supply (if any); and
1.12. Supply means the Goods to be supplied or Services to be performed by Com 1 under the Contract.
1.13. The use of the word ‘includes’ or ‘including’ shall be interpreted to mean ‘includes’ or ‘including without limitation’.
1.14. A reference to ‘$’ or ‘dollars’ in the Contract is to Australian dollars (unless expressly stated otherwise).
2. Contract
2.1. These Terms apply to all Contracts for the Supply of Goods or performance of Services by Com 1 to the Buyer (each a transaction) and supersede any purchase orders issued by the Buyer and all Terms previously issued by Com 1. No Contract for the Supply of Goods or Services shall exist between Com 1 and the Buyer except upon these Terms, unless exclusion or modification is agreed to in writing by Com 1.
2.2. Any order placed by the Buyer to Com 1 for Supply and accepted by Com 1 is deemed to be an order incorporating these Terms, the Quotation and Com 1’s order acknowledgement (if any) (collectively known as the Contract). The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms if the Buyer places an order for or accepts delivery of the Goods.
2.3. No order placed by the Buyer to Com 1 will bind Com 1 unless and until such order is accepted by Com 1 in its absolute discretion.
2.4. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Orders and Price
3.1. Quotations are valid for 30 days from the date of the Quotation. Sales are on a firm basis and no returns will be accepted, unless in accordance with the Australian Consumer Law.
3.2. Placement of a purchase order by the Buyer must reference the applicable Quotation (if any) and is an acceptance of the Contract. Com 1 reserves the right to accept a part only of any order by notifying the Buyer in writing. An order which has been accepted in whole or in part by Com 1 cannot be cancelled or varied by the Buyer without obtaining the prior written approval of Com 1 which it may refuse in its absolute discretion.
3.3. If:
(i) the Buyer has provided Com 1 with a forecast of future requirements or
(ii) the Supplier has manufactured goods based on production recommendations made by the Supplier to the Buyer
then the Supplier shall be entitled to invoice, and deliver to, the Buyer all finished goods made to forecast / per recommendation (as applicable).
4. Payment
4.1. Com 1 will issue an invoice on delivery of the Goods or performance of the Services purchased. The Buyer must pay the entire amount of an invoice in immediately available funds within 7 days of the date of invoice.
4.2. If credit terms are 30 days, then payment must be made by the last working day of the calendar month following the month in which the invoice was issued. Payments made under this clause must be made in full, without any set off, restriction, deduction, withholding or condition.
4.3. If payment is not made in accordance with clause 4.2, Com 1 will be entitled to calculate and charge interest at a rate of 12% per annum. Such interest shall be calculated from the date of due payment until the date of payment in full of the overdue amount, plus interest.
4.4. Default by the Buyer under these payment provisions entitles Com 1 to demand full payment immediately, under any then current agreement between the Buyer and Com 1, failing which Com 1, in addition to any other course of action then available to Com 1, may elect to terminate all or any of those other agreements immediately by notice in writing to the Buyer.
4.5. If the Buyer owes Com 1 any money the Buyer shall indemnify Com 1 from and against all costs and disbursements incurred by Com 1 in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Com 1’s contract default fee, and bank dishonour fees).
4.6. Further to any other rights or remedies Com 1 may have under this Contract, if a Buyer has made payment to Com 1, and the transaction is subsequently reversed, the Buyer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Com 1 under this clause where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Buyer’s obligations under this contract.
5. Delivery
5.1. Com 1 must make all reasonable efforts to have the Supply delivered or performed on the date agreed between the parties as the delivery date, but Com 1 shall be under no liability whatsoever should delivery not be made on this date.
5.2. Delivery of the Goods is taken to occur at the time that:
(i) the Buyer or the Buyer’s nominated carrier takes possession of the Goods at Com 1’s address; or
(ii) Com 1 (or Com 1’s nominated carrier) delivers the Goods to the Buyer’s nominated address even if the Buyer is not present at the address.
5.3. At Com 1’s sole discretion, the cost of delivery is either included or is in addition to the Price.
5.4. Unless otherwise agreed, Com 1 shall select the route and means of delivery of the Goods to the premises of the Buyer or premises nominated by the Buyer.
5.5. If the preparation of the Buyer’s order or the delivery of any Supply is suspended by the Buyer’s instructions or failure to instruct, the price will be increased to cover any extra expenses incurred by Com 1 directly or indirectly as a consequence of the instructions or failure to instruct. If the Buyer is unable to take the Goods when they are ready for dispatch, then Com 1 may invoice the Buyer for storage of such Goods.
6. Risk
6.1. Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery of the Goods to the Buyer or the agent of the Buyer or to a carrier commissioned by the Buyer.
6.2. Following delivery of the Goods, the Buyer must, at its own expense, insure the Goods against storm and tempest, loss or damage by fire, accident or malicious or negligent damage or otherwise howsoever caused and the Buyer must maintain that insurance in the name of Com1 until title in the Goods pass to the Buyer.
6.3. If the Buyer requests Com 1 to leave Goods outside Com 1’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Buyer’s sole risk.
7. Title
7.1. The parties agree that the property in and title to the Goods remains with Com 1 until all Amounts Owing have been paid in full (notwithstanding any intermediate payment in settlement of any particular account) and the Buyer has met all of its other obligations to Com 1.
7.2. Receipt by Com 1 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 recognized.
7.3. Until all debts owing to Com 1 by the Buyer have been paid in full, the Buyer is in a fiduciary relationship with Com 1 and is a bailee only of the Goods.
7.4. Until such time as to all debts owing by the Buyer to Com 1 have been paid in full, the Buyer is at liberty to sell the goods in the ordinary course of business as agent for Com 1 and shall account to Com 1 for the proceeds and shall hold such proceeds separately on trust for Com 1. This authority to use and sell the Goods automatically terminates if the Buyer breaches these Terms, the Buyer becomes insolvent or Com 1 decides, in its absolute discretion, to revoke such authority. Upon termination of the authority granted, Com 1 may take possession of any Goods for which it has not yet received payment and enter any premises where such Goods may be located.
8. Services
8.1. The Buyer shall take all necessary measures to ensure that Com 1 personnel are able to safely and expeditiously commence and carry out the Services immediately upon their arrival on site including provide the relevant utilities services required to perform the Services as advised by Com 1.
8.2. The Buyer must be responsible for the accuracy and completeness of the information supplied by the Buyer and its representatives. In the event of any error or omission in this information supplied, the Buyer shall be responsible and shall bear the cost of any alterations or variations required to the Services.
9. Fitness for Purpose
9.1. Subject to clause 10, the Buyer acknowledges that Com 1 or a person purporting to act on its behalf has not made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the Supply for any particular purpose or any other matter. The Buyer acknowledges that without relying upon the skills or judgment of Com 1 or any person purporting to act on its behalf, it has determined that the Supply being acquired shall be fit for its purposes. Any description of the Supply is for identification only and shall not constitute a contract for the supply of the Goods by description.
9.2. The Buyer agrees that any advice or work provided by Com 1 at no charge is provided on an ‘as is’ basis and Com 1 shall have no liability to the Buyer in respect of such advice or work whatsoever. Technical advice given as part of a SOW will be warranted as set out in the SOW, but subject to these Terms.
10. Equipment
10.1. Where Equipment is provided to a Buyer, including Equipment provided on the express basis of a trial, it is done so on the basis that it is intended that the Buyer will purchase the Equipment.
10.2. The Equipment remains at all times the property of Com 1 until paid for in full by the Buyer and the Buyer shall store the Equipment so that it is separately identifiable as the Goods of Com 1 and will not remove any marks identifying the Equipment.
10.3. All security interest clauses in this Contract will apply with full effect to the Equipment.
10.4. The Buyer agrees that in the event that it does not purchase the Equipment, it has an obligation to return the Equipment in good condition to Com 1 at the end of the trial period.
10.5. The Buyer may use or resell the Goods in the ordinary course of business prior to Com 1 receiving payment in full but until such use or resale or until Com 1 has received payment in full, the Buyer shall endeavor to store the Equipment in such a way as are identifiable.
11. Statutory Rights of the Buyer
11.1. The Contract shall not exclude or modify the rights, entitlements, remedies and liabilities of either party by any condition or warranty implied by any Commonwealth, State or Territory Act (including but not limited to the Australian Consumer Law set out in schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA)) or any other law rendering void or prohibiting such exclusion or modification.
11.2. Except to the extent that any such rights, entitlements, remedies and liabilities cannot be excluded or limited, all representations, terms, warranties and conditions not set out in the Contract in relation to the Supply including whether expressed or implied by statute, common law or trade custom or usage or otherwise are hereby expressly excluded.
11.3. The Buyer must inspect the Goods on delivery and must within seven (7) days of delivery notify Com 1 in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or Quotation. The Buyer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Buyer must allow Com 1 to inspect the Goods. The Buyer acknowledges that no warranty applies to software licences.
11.4. If the Buyer is a consumer within the meaning of the CCA, Com 1’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.5. If Com 1 is required to replace the Goods under this clause or the CCA, but is unable to do so, Com 1 may refund any money the Buyer has paid for the Goods.
11.6. If the Buyer is not a consumer within the meaning of the CCA, Com 1’s liability for any defect or damage in the Goods is:
(i) limited to the value of any express warranty or warranty card provided to the Buyer by Com 1 at Com 1’s sole discretion;
(ii) limited to any warranty to which Com 1 is entitled, if Com 1 did not manufacture the Goods;
(iii) otherwise negated absolutely.
11.7. Subject to this clause, returns will only be accepted provided that:
(i) the Buyer has complied with the provisions of clause 11.3; and
(ii) Com 1 has agreed that the Goods are defective; and
(iii) the Goods are returned within a reasonable time at the Buyer’s cost (if that cost is not significant); and
(iv) the Goods are returned in as close a condition to that in which they were delivered as is possible.
11.8. Notwithstanding the above-mentioned clauses but subject to the CCA, Com 1 shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(i) the Buyer failing to properly maintain or store any Goods;
(ii) the Buyer using the Goods for any purpose other than that for which they were designed;
(iii) the Buyer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(iv) the Buyer failing to follow any instructions or guidelines provided by Com 1;
(v) fair wear and tear, any accident, or act of God.
11.9. Notwithstanding anything contained in this clause if Com 1 is required by a law to accept a return then Com 1 will only accept a return on the conditions imposed by that law.
11.10. Subject to clause 11.3, customised, or non-stocklist items or Incidental Items made or ordered to the Buyer’s specifications are not acceptable for credit or return.
12. Liability
12.1. Notwithstanding any other provision of the Contract and to the extent permitted by law:
(i) The liability of Com 1 pursuant to clauses 9 and 11 above shall be limited to, at Com 1’s sole discretion, any one or more of the following:
a. the replacement of the Goods or the supply of equivalent Goods;
b. the repair of the Goods;
c. the payment of the cost of replacing or repairing the Goods or of acquiring equivalent Goods; and/or
d. the re-performance of the Services (as applicable).
(ii) Subject to clause 12.1(i)), Com 1 (and its employees, affiliates, contractors and agents) shall under no circumstances be liable to the Buyer, its employees, affiliates, agents or contractors for any, indirect, incidental or consequential loss or damages, loss of profits or revenue, production, contract, sales opportunity or business reputation, direct or indirect labour cost and overhead expenses, business interruption, loss or corruption of information or data, loss of expected savings, opportunity costs, loss or reduction of goodwill, economic loss and damage to Equipment or property or any other claim whatsoever arising directly or indirectly out of or in any way attributable to the sale, delivery or performance of the Supply or the Contract.
12.2. Without limiting clause 12.1(ii), Com 1 accepts no responsibility or liability for any loss or damage arising out of or in connection with any personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever caused by the Supply.
12.3. The Buyer will indemnify Com 1 and keep it indemnified from and against liability and any loss or damage of any kind whatsoever arising directly or indirectly from:
(i) any breach of any of these Terms by the Buyer;
(ii) any injury or harm suffered by an employee, agent or contractor of Com 1 on the premises of the Buyer or any other Premises employees, agents or contractors of Com 1 are required by the Buyer to attend; and
(iii) any claim by any person in respect of or arising out of or in connection with any of the matters referred to in clause 12.2.
12.4. No warranty is given, and no responsibility is accepted, by Com 1 to ensure that Goods supplied under this Agreement comply with any statutory requirements relating to the marketing of Goods. Compliance with such legislation is the Buyer’s sole responsibility. The limitations and exclusions of liability in the Contract shall apply whether the liability claim is based on negligence or other tort or breach of contract by Com 1, under statute, a warranty, an indemnity, in equity or otherwise.
13. Intellectual Property and Confidentiality
13.1. The sale to and the purchase by the Buyer of deliverables does not confer on the Buyer any licence or right under any copyright, patent, design or trade mark or any other intellectual property right which is the property of Com 1 which shall include all tooling, materials, designs, software, industrial or intellectual property or the like used in the preparation for or production of or contained in any Goods or provision of any Services. Title to all intellectual property rights subsisting in the Supply (including designs, drawings and patents) shall remain the exclusive property of Com 1 or Com 1’s third-party suppliers or licensors.
13.2. All drawings furnished by Com 1 to the Buyer are copyright, confidential and supplied for the sole purpose of the particular Contract concerned. The Buyer may not make any copies of or use for any purpose other than as expressly authorized by Com 1 in writing or communicate any details of the drawing or any other sensitive information provided by Com 1 to any third party without the prior written consent of Com 1.
14. Termination
14.1. If either party (the defaulting party):
(i) fails to observe or perform any of the terms of the Contract, and (if the breach can be cured) has failed to rectify the breach within 14 days after being notified in writing of the breach;
(ii) the Buyer has exceeded any applicable credit limit provided by Com 1; or
(iii) is insolvent, a resolution is passed or proposed or an application filed for the winding up of the defaulting party, or an administrator, receiver or receiver and manager, mortgagee in possession or other like officer is appointed in respect of the property or any part of the property of the Buyer or the Buyer is de-registered or the Buyer makes or proposes to make an arrangement with its creditors, or the Buyer is placed under official management or execution is levied upon the assets of the defaulting party,
the other party may at any time in its absolute discretion terminate the Contract in whole or in part or suspend performance under the Contract by notice in writing to the Buyer but without prejudice to the other rights of the other party at law or under the Contract.
15. Force Majeure and Frustration
15.1. Either party shall use all reasonable endeavours to fulfil its contractual obligations but if an event of force majeure occurs or the Contract becomes impossible to perform or is otherwise frustrated, the parties shall be excused from its obligations hereunder without recourse from the other party to the extent that the force majeure affects them.
15.2. Despite this clause, the Buyer shall be liable to pay to Com 1 all costs which suppliers or subcontractors of Com 1 have incurred directly or indirectly, or for which Com 1 is liable, as a result of a delay caused by the force majeure event or a frustration, impossibility of performance or an act or omission of the Buyer or its agents and contractors.
15.3. Com 1 agrees that it will not require payment for any standard parts or materials which Com 1 may be able to use at the time in any other contract then current. Any prepayments which may have been made to Com 1 under the Contract shall be applied towards the satisfaction of such sum as may become due to it and the excess (if any) prepayment shall be refunded to the Buyer.
15.4. An “event of force majeure” means anything outside a party’s reasonable control including but not limited to fire, storm, flood, earthquake, explosion, war, invasion, rebellion, sabotage or epidemic, labour dispute, labour shortage, failure or delay in transportation, act or omission (including laws, regulations, disapprovals or failures to approve) of any third person (including, but not limited to, subcontractors, Buyers, governments or government agencies).
16. Notice
16.1. Any written notice given under this contract shall be deemed to have been given and received:
(i) by handing the notice to the other party, in person;
(ii) by leaving it at the address of the other party as stated in this contract;
(iii) by sending it by registered post to the address of the other party as stated in this contract;
(iv) 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;
(v) if sent by email to the other party’s last known email address.
16.2. 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.
17. Taxes
17.1. Unless otherwise stated, the prices quoted are exclusive of any taxes, including GST (as that term is defined in the A New Tax System (Goods and Services Tax) Act 1999 as amended (‘GST Act’)).
17.2. If the Supply being the subject of the Quotation are a taxable supply for the purpose of the GST Act, in addition to paying for the Goods, the Buyer must pay to Com 1 the GST payable in respect of the taxable supply. If any other taxes are levied on the Goods and Services, these must be paid by the Buyer.
18. Quantities
18.1. Com 1 will use all reasonable endeavours to supply the quantity of Goods ordered by the Buyer.
19. Dispute Resolution
19.1. If a difference or dispute arises between the parties arising out of or in connection with the Contract (‘dispute’), the aggrieved party must send a written notice to the other party setting out the nature of the dispute, what outcome that party wants and what action they think will settle the dispute.
19.2. The parties must use reasonable endeavours to resolve the dispute by mutual negotiation.
19.3. If any dispute is not resolved within 28 days of the matter arising, either party may require the matter to be referred to mediation by notice to the other party setting out the general nature of the difference.
19.4. If the parties fail to agree on mediation or settle the dispute by mediation within 28 days of the matter being referred to mediation, then either party may initiate litigation to resolve the dispute.
19.5. Either party may take immediate steps at any time to seek urgent injunctive or equitable relief before an appropriate court.
20. Personal Property Securities Act 2009 (CTH)
20.1. The Buyer acknowledges that the Contract, which includes these Terms, constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA).
20.2. Com 1 takes a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Buyer to Com 1 for Services – supplied, and that will be supplied in the future, to the Buyer by Com 1 under the Contract and any proceeds and any accession that secures any money owing or payable by the Buyer to Com 1, securing the performance by the Buyer of its obligations under the Contract.
20.3. Com 1’s security interest in the Goods and any proceeds is a Purchase Money Security Interest (PMSI) under the PPSA to the extent that it secures payment of any amount owing in relation to the Goods.
20.4. Com 1’s security interest attaches to the Goods when the Buyer obtains possession of the Goods.
20.5. The Buyer undertakes to:
(i) 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 Com 1 may reasonably require to;
(ii) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(iii) register any other document required to be registered by the PPSA; or
(iv) correct a defect in a statement referred to in clause 20.5(i)(ii) or 20.5(i)(iii);
(v) indemnify, and upon demand reimburse, Com 1 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;
(vi) not register a financing change statement in respect of a security interest without the prior written consent of Com 1;
(vii) 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 Com 1;
(viii) immediately advise Com 1 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.
20.6. The Buyer shall not create or cause to be created a security interest over, or in respect of its rights in, the Goods other than the security interest arising under the Contract.
20.7. The Buyer consents to Com 1 perfecting its interest in any Goods provided by Com 1 to the Buyer by registration under the PPSA and agreed to do anything reasonably requested by Com 1 to enable it to do so including, but not limited to, executing all documents and promptly informing Com 1 of any change of name or other details of the Buyer.
20.8. To the extent permitted by law, the Buyer agrees to waive its rights under the PPSA to:
(i) receive a copy of any verification statement;
(ii) receive any notice that Com 1 intends to sell the Goods or to retain the Goods on enforcement of the security interest granted under these terms;
(iii) object to a proposal by Com 1 to retain the Goods in satisfaction of any obligation owed by Buyer to Com 1;
(iv) receive a statement of account on sale of the Goods;
(v) retain the Goods; and
(vi) where any Goods become an accession, to receive notice of removal of the accession and to apply to the court for an order concerning the removal of the accession.
20.9. The Buyer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
20.10. Subject to any express provisions to the contrary (including those contained in this clause 20), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
21. Security and Charge
21.1. In consideration of Com 1 agreeing to supply the Goods, the Buyer 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 Buyer either now or in the future, to secure the performance by the Buyer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
21.2. The Buyer indemnifies Com 1 from and against all Com 1’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Com 1’s rights under this clause.
21.3. The Buyer irrevocably appoints Com 1 and each director of Com 1 as the Buyer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 21 including, but not limited to, signing any document on the Buyer’s behalf.
22. Privacy Act 1988
22.1. The Buyer agrees for Com 1 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 Buyer in relation to credit provided by Com 1.
22.2. The Buyer agrees that Com 1 may exchange information about the Buyer with those credit providers and with related body corporates for the following purposes:
(i) to assess an application by the Buyer; and/or
(ii) to notify other credit providers of a default by the Buyer; and/or
(iii) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and/or
(iv) to assess the creditworthiness of the Buyer including the Buyer’s repayment history in the preceding two (2) years.
22.3. The Buyer consents to Com 1 being given a consumer credit report to collect overdue payment on commercial credit.
22.4. The Buyer agrees that personal credit information provided may be used and retained by Com 1 for the following purposes (and for other agreed purposes or required by):
(i) the provision of Goods; and/or
(ii) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to the provision of Goods; and/or
(iii) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Buyer; and/or
(iv) enabling the collection of amounts outstanding in relation to the Goods.
22.5. Com 1 may give information about the Buyer to a CRB for the following purposes:
(i) to obtain a consumer credit report;
(ii) allow the CRB to create or maintain a credit information file about the Buyer including credit history.
22.6. The information given to the CRB may include:
(i) personal information as outlined above;
(ii) name of the credit provider and that Com 1 is a current credit provider to the Buyer;
(iii) whether the credit provider is a licensee;
(iv) type of consumer credit;
(v) details concerning the Buyer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(vi) 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 Buyer no longer has any overdue accounts and Com 1 has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(vii) information that, in the opinion of Com 1, the Buyer has committed a serious credit infringement;
(viii) advice that the amount of the Buyer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
22.7. The Buyer shall have the right to request (by e-mail) from Com 1:
(i) a copy of the information about the Buyer retained by Com 1 and the right to request that Com 1 correct any incorrect information; and
(ii) that Com 1 does not disclose any personal information about the Buyer for the purpose of direct marketing.
22.8. Com 1 will destroy personal information upon the Buyer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
22.9. The Buyer can make a privacy complaint by contacting Com 1 via e-mail. Com 1 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 Buyer is not satisfied with the resolution provided, the Buyer can make a complaint to the Information Commissioner at www.oaic.gov.au.
23. Unpaid Seller’s Rights
23.1. Where the Buyer has left any item with Com 1 for repair, modification, exchange or for Com 1 to perform any other service in relation to the item and Com 1 has not received or been tendered the whole of any monies owing to it by the Buyer, Com 1 shall have, until all monies owing to Com 1 are paid:
(i) a lien on the item; and
(ii) 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.
23.2. The lien of Com 1 shall continue despite the commencement of proceedings, or judgment for any monies owing to Com 1 having been obtained against the Buyer.
24. Trusts
24.1. If the Buyer 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 Com 1 may have notice of the Trust, the Buyer covenants with Com 1 as follows:
(i) the contract extends to all rights of indemnity which the Buyer now or subsequently may have against the Trust and the trust fund;
(ii) the Buyer 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 Buyer against the Trust or the trust fund. The Buyer 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.
(iii) the Buyer will not without consent in writing of Com 1 (Com 1 will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
a. the removal, replacement or retirement of the Buyer as trustee of the Trust;
b. any alteration to or variation of the terms of the Trust;
c. any advancement or distribution of capital of the Trust; or
d. any resettlement of the trust property.
25. Governing Law
25.1. These Terms are governed by the laws of Victoria, Australia.
25.2. The Buyer and Com 1 agree to submit to the non-exclusive jurisdiction of the courts of Victoria, Australia and the courts of appeal from them.
26. Change in Control
26.1. The Buyer shall give Com 1 not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, contact phone or fax number/s, change of trustees or business practice). The Buyer shall be liable for any loss incurred by Com 1 as a result of the Buyer’s failure to comply with this clause.
27. General
27.1. If one or more provisions of these Terms is or becomes void, voidable or unenforceable for any reason, all other provisions shall remain in full force and effect.
27.2. No variation of these Terms is legally binding upon either party unless in writing and signed by both parties.
27.3. The Terms sets out the entire understanding between the parties with respect to the subject-matter contained in it.
27.4. No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Term or any part of it.
27.5. Com 1 may, in its absolute discretion, sub-contract the Supply.
27.6. The Buyer may not assign, pledge or transfer its interest in the Contract (or any part of it) any of its rights or obligations hereunder without the prior written consent of Com 1 (which will not be unreasonably withheld).
27.7. Failure by Com 1 to insist upon strict performance by the Buyer of any of these Terms is not to be taken to be a waiver of any rights of Com 1 and is not be taken to be a waiver of these Terms.
27.8. To the extent of any inconsistency between the Quotation and these Terms, these Terms shall prevail (provided however that where Equipment-specific terms are attached to the Quotation, those terms shall take precedence in respect of the Equipment).
27.9. To the extent that these Terms are a consumer contract (within the meaning of the Australian Consumer Law) and a standard form contract (within the meaning of the Australian Consumer Law), any term of these Terms which would be void because the term is unfair:
(i) must be read down to the extent necessary to avoid that result; and
(ii) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.
27.10. The Buyer agrees that Com 1 may amend these Terms by notifying the Buyer in writing. These changes shall be deemed to take effect from the date on which the Buyer accepts such changes, or otherwise at such time as the Buyer makes a further request for Com 1 to provide Goods to the Buyer.