1. Definitions
1.1 “National Capital Glass” means National Capital Glass Pty Ltd ATF A & H Family Trust T/A National Capital Glass Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of National Capital Glass Pty Ltd ATF A & H Family Trust T/A National Capital Glass 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 National Capital Glass 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 National Capital Glass and the Client in accordance with clause 4 below.
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 National Capital Glass’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and National Capital Glass.
2.3 In the event that the Goods and/or Services provided by National Capital Glass are the subject of an insurance claim that the Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by National Capital Glass and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
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 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Change in Control
3.1 The Client shall give National Capital Glass 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 National Capital Glass as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At National Capital Glass’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by National Capital Glass to the Client; or
(b) National Capital Glass’ quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 National Capital Glass reserves the right to change the Price if a variation to National Capital Glass’ quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, incorrect measurements being provided by the Client, prerequisite work by any third party not being completed, changes to design or as a result of any increase to National Capital Glass’ in the cost of materials and labour) will be charged for on the basis of National Capital Glass’ quotation and will be shown as variations on the invoice.
4.3 At National Capital Glass’ sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by National Capital Glass, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with National Capital Glass’ payment schedule;
(c) for domestic pool fencing, the payment schedule shall be;
(i) a deposit of ten percent (10%) of the Price; and
(ii) a first instalment of twenty percent (20%) of the Price; and
(iii) the final instalment being the balance of seventy percent (70%) of the Price.
(d) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is the number of days as applicable below following the date of any invoice given to the Client by National Capital Glass being;
(i) seven (7) days for domestic Clients; or
(ii) fourteen (14) days for commercial Clients; or
(iii) thirty (30) days for approved account holders.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and National Capital Glass.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to National Capital Glass an amount equal to any GST National Capital Glass must pay for any supply by National Capital Glass 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.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at National Capital Glass’ address; or
(b) National Capital Glass (or National Capital Glass’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 At National Capital Glass’ sole discretion the cost of delivery is included in the Price.
5.3 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 National Capital Glass shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 Delivery of the Goods to a third party nominated by the Client shall be deemed to be delivery to the Client for the purposes of this agreement.
5.5 Any time or date given by National Capital Glass to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and National Capital Glass will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6. Risk
6.1 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.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, National Capital Glass is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by National Capital Glass is sufficient evidence of National Capital Glass’ rights to receive the insurance proceeds without the need for any person dealing with National Capital Glass to make further enquiries.
6.3 If the Client requests National Capital Glass to leave Goods outside National Capital Glass’ premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
6.4 National Capital Glass shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, National Capital Glass accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
6.5 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. National Capital Glass will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
6.6 Holes, cut outs and cutting of the Goods may weaken the strength of the Goods and although it’s unlikely, cracking may occur. National Capital Glass accepts no responsibility against cracks occurring after such Goods (that are subject to holes and cut outs) are installed unless a toughened glass is used.
6.7 The Client acknowledges that where an anodised surface frame finish has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in aluminium alloys available and manufacturing standards and tolerances shall not deem to be a defect in the Goods.
6.8 The Client acknowledges and agrees that National Capital Glass shall not accept the return, nor give any refund on any glass that has already been cut as it cannot be resold.
6.9 The Client must be on site to supervise the marking out of the fence line, placement of boundary pegs and during the installation of the fence. If the Client fails to comply with this clause, then National Capital Glass accepts no responsibility for installation decisions that need to be made by National Capital Glass in the Client’s absence.
6.10 The Client acknowledges that it is their responsibility to remove any existing fence (including existing footings), trees, vines and shrubs to allow National Capital Glass clear access along the proposed fence line prior to commencement of work by National Capital Glass unless otherwise agreed in writing between National Capital Glass and the Client. Under no circumstances will National Capital Glass handle removal of asbestos product.
6.11 The Client shall provide National Capital Glass with a suitable free power source.
6.12 Whilst National Capital Glass will take all due care during installation National Capital Glass will not accept any responsibility for tiles or pavers damaged during installation.
6.13 Location of underground services by a licensed service locator is mandatory prior to commencement of any work. “Dial Before You Dig” must be consulted and any potential underground services marked on site. Whilst National Capital Glass will take all care to avoid damage to any underground services the Client agrees to indemnify National Capital Glass 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. If the Client requests National Capital Glass to engage the service locator, then this shall be in addition to the Price.
6.14 National Capital Glass shall not be responsible for digging land out under fence lines nor removal of soil from the work site.
6.15 National Capital Glass reserves the right to touch-up all products supplied and installed on the work site.
7. Suitability for Applications
7.1 To the extent permitted by law, no condition is made or to be implied, nor is any warranty given, or to be implied as to the life or wear of the Goods supplied or that they will be suitable for any particular purpose, or for use under specific conditions, notwithstanding that such purpose or conditions may be known or made known to National Capital Glass. Whilst National Capital Glass supplies products in accordance with specific manufacturing standards, it is the Client’s responsibility to ensure that the Goods comply with the requirements of the applicable Australian Glazing Standards and codes pf particular glazing applications. National Capital Glass reserves the right to sub-contract the production, manufacture or supply of the whole or any part of the Goods or any materials or Services to be supplied.
7.2 All customary building industry tolerances shall apply to the dimensions and measurements of the Goods unless National Capital Glass and the Client agree otherwise in writing.
8. Access
8.1 The Client shall ensure that National Capital Glass has clear and free access to the work site at all times to enable them to undertake the Services. National Capital Glass 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 National Capital Glass.
8.2 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks. The Client agrees to indemnify National Capital Glass against all costs incurred by National Capital Glass in recovering such vehicles in the event they become bogged or otherwise immovable.
9. Compliance with Laws
9.1 The Client and National Capital Glass 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.
9.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
9.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
10. Title
10.1 National Capital Glass and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid National Capital Glass all amounts owing to National Capital Glass; and
(b) the Client has met all of its other obligations to National Capital Glass.
10.2 Receipt by National Capital Glass 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.
10.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to National Capital Glass on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for National Capital Glass and must pay to National Capital Glass 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 National Capital Glass and must pay or deliver the proceeds to National Capital Glass 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 National Capital Glass and must sell, dispose of or return the resulting product to National Capital Glass as it so directs.
(e) the Client irrevocably authorises National Capital Glass to enter any premises where National Capital Glass believes the Goods are kept and recover possession of the Goods.
(f) National Capital Glass 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 National Capital Glass.
(h) National Capital Glass may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 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 National Capital Glass for Services – that have previously been supplied and that will be supplied in the future by National Capital Glass to the Client.
11.3 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 National Capital Glass 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 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, National Capital Glass 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 National Capital Glass;
(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 National Capital Glass;
(e) immediately advise National Capital Glass 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.
11.4 National Capital Glass 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.
11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by National Capital Glass, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by National Capital Glass under clauses 11.3 to 11.5.
11.9 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.
12. Security and Charge
12.1 In consideration of National Capital Glass 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).
12.2 The Client indemnifies National Capital Glass from and against all National Capital Glass’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising National Capital Glass’ rights under this clause.
12.3 The Client irrevocably appoints National Capital Glass and each director of National Capital Glass as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify National Capital Glass 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 National Capital Glass to inspect the Goods.
13.2 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).
13.3 National Capital Glass acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, National Capital Glass makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. National Capital Glass’ liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, National Capital Glass’ liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If National Capital Glass is required to replace the Goods under this clause or the CCA, but is unable to do so, National Capital Glass may refund any money the Client has paid for the Goods.
13.7 If the Client is not a consumer within the meaning of the CCA, National Capital Glass’ 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 National Capital Glass at National Capital Glass’ sole discretion;
(b) limited to any warranty to which National Capital Glass is entitled, if National Capital Glass did not manufacture the Goods;
(c) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 13.1; and
(b) National Capital Glass 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.
13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, National Capital Glass 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 National Capital Glass;
(e) fair wear and tear, any accident, or act of God.
14. Intellectual Property
14.1 Where National Capital Glass has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of National Capital Glass.
14.2 The Client warrants that all designs, specifications or instructions given to National Capital Glass will not cause National Capital Glass to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify National Capital Glass against any action taken by a third party against National Capital Glass in respect of any such infringement.
14.3 The Client agrees that National Capital Glass may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which National Capital Glass has created for the Client.
15. Default and Consequences of Default
15.1 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 National Capital Glass’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes National Capital Glass any money the Client shall indemnify National Capital Glass from and against all costs and disbursements incurred by National Capital Glass in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, National Capital Glass’ contract default fee, and bank dishonour fees).
15.3 Further to any other rights or remedies National Capital Glass may have under this contract, if a Client has made payment to National Capital Glass, 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 National Capital Glass under this clause 15 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.
15.4 Without prejudice to any other remedies National Capital Glass may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions National Capital Glass may suspend or terminate the supply of Goods to the Client. National Capital Glass will not be liable to the Client for any loss or damage the Client suffers because National Capital Glass has exercised its rights under this clause.
15.5 Without prejudice to National Capital Glass’ other remedies at law National Capital Glass shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to National Capital Glass shall, whether or not due for payment, become immediately payable if:
(a) any money payable to National Capital Glass becomes overdue, or in National Capital Glass’ 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.
16. Cancellation
16.1 National Capital Glass 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 National Capital Glass shall repay to the Client any money paid by the Client for the Goods. National Capital Glass shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 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 National Capital Glass as a direct result of the cancellation (including, but not limited to, any loss of profits).
17. Privacy Act 1988
17.1 The Client agrees for National Capital Glass 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 National Capital Glass.
17.2 The Client agrees that National Capital Glass 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.
17.3 The Client consents to National Capital Glass being given a consumer credit report to collect overdue payment on commercial credit.
17.4 The Client agrees that personal credit information provided may be used and retained by National Capital Glass 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.
17.5 National Capital Glass 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.
17.6 The information given to the CRB may include:
(a) personal information as outlined in 17.1 above;
(b) name of the credit provider and that National Capital Glass 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 National Capital Glass has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of National Capital Glass, 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).
17.7 The Client shall have the right to request (by e-mail) from National Capital Glass:
(a) a copy of the information about the Client retained by National Capital Glass and the right to request that National Capital Glass correct any incorrect information; and
(b) that National Capital Glass does not disclose any personal information about the Client for the purpose of direct marketing.
17.8 National Capital Glass 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.
17.9 The Client can make a privacy complaint by contacting National Capital Glass via e-mail. National Capital Glass 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.
18. Dispute Resolution
18.1 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.
19. Building and Construction Industry (Security of Payment) Act 2009
19.1 At National Capital Glass’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry (Security of Payment) Act 2009 may apply.
19.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry (Security of Payment) Act 2009 of the Australian Capital Territory, except to the extent permitted by the Act where applicable.
20. General
20.1 The failure by National Capital Glass to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect National Capital Glass’ 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.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the Australian Capital Territory in which National Capital Glass has its principal place of business, and are subject to the jurisdiction of the courts in the Australian Capital Territory.
20.3 Subject to clause 13, National Capital Glass 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 National Capital Glass of these terms and conditions (alternatively National Capital Glass’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
20.4 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 National Capital Glass nor to withhold payment of any invoice because part of that invoice is in dispute.
20.5 National Capital Glass may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.6 The Client agrees that National Capital Glass may amend these terms and conditions at any time. If National Capital Glass makes a change to these terms and conditions, then that change will take effect from the date on which National Capital Glass notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for National Capital Glass to provide Goods to the Client.
20.7 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.
20.8 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.
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