TERMS AND CONDITIONS OF TRADE AGREEMENT

1. Interpretations

(a)        “the Act” means the Competition & Consumer Act 2010

(b)        “Agreement” means this Terms and Conditions of Trade Agreement between Proview and the Client             .

(c)        “Claim” means any claim, demand, action or proceeding.

(d)        “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Proview to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

• if there is more than one Client, is a reference to each Client jointly and severally; and
• if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
• includes the Client’s executors, administrators, successors and permitted assigns.

(e)        “Equipment” means all goods and its equipment for hire supplied to the Client by Proview for a fee pursuant to these terms and conditions.

(f)         “Force Majeure” means any circumstance or thing beyond control of Proview that results in Proview being unable to fulfill or perform on time any of its obliterations, including a pandemic, acts of God, fire, explosions, terrorism or any other thing or event beyond the control of Proview.

(g)        “Goods” means all Goods (supplied either by sale or hire) or Services supplied by Proview 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).

(h)        “Hire Period” means the Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by Proview to the Client. The period of hire commencing on the date that the Equipment is delivered by Proview to the Client and concludes on the date that the Equipment is collected by Proview.

(i)         “Invoice” means any invoice or statement given by Proview to the Client for the Services.

(j)         “PPSA” means Personal Property Securities Act 2009 (Cth).

(k)        “Price” means our fixed and published price or the amount agreed between Proview and the Client or the amount established by a course of dealing between the parties.

(l)         “Proview” means Proview Aluminium Scaffolds Pty Ltd A.C.N 660 297 307 including its related entities, officers, directors, employees and representatives from time to time.

(m)       “Security Interest” has the meaning in the PPSA.

(n)        “Services” means any service provided by Proview to the Client.

(o)        “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.

 

2. General

• These general agreed terms apply to all transactions between the parties. Other documents relating to the transactions between the parties will include any specific terms and conditions. This document will supersede all other conditions and agreements between the parties, unless expressly amended by Proview.

• Proview may, at any time, vary these terms of trade for future Services by giving notice to the Client. Notice may be given by email or otherwise in writing. Proview will not change any terms for an existing order that has been accepted by it

• No variation of these terms and conditions will be deemed effective unless it is expressly agreed in writing and signed by Proview.

• These terms and conditions must not be altered by the Client.

3. Supply of Services and Equipment
   • Proview will issue to the Client a quote for the supply of Equipment and Services to the Client along with a copy of these terms and conditions. Following receipt of these items, the Client will be deemed to have accepted the quote and terms and conditions (unless any communications are received by Proview to the contrary).

• Proview will supply the Equipment and Services at the Price and rates specified in its quote to the Client and may supply additional Equipment and Services from time to time as requested by the Client.

• The Client must pay to Proview the Prices at the rates specified in Proview’s quote and any amended rates as notified by Proview from time to time for the supply of Equipment and Services promptly by the due date set out in the quote.

• If Proview changes any hire rates provided in its quote during the Hire Period, Proview may apply the new hire rates for the Equipment by giving the Client seven days’ notice in writing of the change. The Client will be liable to and must pay the increased rates from the date specified in the notice.

• In the event that the Client objects to any increase in hire rates, the Client may terminate the Services and hire of Equipment by giving Proview seven (7) days written notice, failing which, the new hire rates as notified will apply from the date specified in Proview’s written notice to the Client.

• Should the Client wish to terminate the Services, Proview will halt its services to the Client and the Client must return or make available for dismantling any Equipment to Proview immediately in accordance with these terms and conditions, without affecting any other rights that Proview may have as a consequence of the termination of the Services and this contract. The Client remains liable for all hire rates and other costs and expenses until the Equipment is returned to Proview.

• The Client agrees and acknowledges that 14 days is the minimum Hire Period.

4. Payment
   • Unless otherwise agreed by the parties in writing, payment for the Services and Equipment shall be made by the Client on the first performance of the Services, or if credit terms are given, then within 30 days of the date each invoice is provided by Proview to the Client, or such other period as specified in the Quote or as notified to the Customer by Proview in writing from time to time.

• Unless otherwise agreed, normally payment is a condition precedent to the delivery of Equipment provided to the Client.
  
• By accepting payment of any sum after its due date, Proview will not waive its right either to require payments as they fall due to or to suspend or end the Services provided or arrangements between the parties.

• The Client is not entitled to withhold any payment by way of retention unless the terms and conditions of the retention are agreed to in writing by Proview prior to the supply of the Services.

• Time for payment of the price of the Services shall be of the essence and if the Client fails to pay the Price (as set out in the Invoice) when due, Proview may treat this Agreement as repudiated by the Client or may, unless payment in full is made, suspend the provision of its Services with the Client, without incurring any liability whatsoever to the Client. In addition, without prejudice to such rights of Proview, the Client shall (if required by Proview) pay interest to Proview on the outstanding amount of the price at the rate of 18% per annum until the amount owed is paid in full.

5. Default
   • If the Client is in default under these terms and conditions, Proview may send the Client a default notice. The notice will tell the Client what the default is and what the Client is required to do to correct the default. The Client will have 14 days to rectify the default.

• If the Client does not comply with the default notice, the Client become immediately liable to pay to Proview all of the money owing under the Invoice with interest on that amount from the due date until payment at the rate of 18% per annum.

• The Client also agrees to pay on default all costs and expenses incurred in exercising Proview’s rights of recovery from the Client and the guarantor (if any) and indemnify Proview against any losses resulting from the default or any future losses in relation to the default.
  
• The Client agrees to sign documents or do all things necessary to perfect Proview’s rights under these terms and conditions and appoint Proview as the Client’s attorney to sign any document or do anything that may reasonably be required to enforce Proview’s rights on default.
  
• Any expenses, costs or disbursements incurred by Proview in recovering any outstanding monies owing by the Client (including solicitor’s costs and debt recovery fees) shall be paid by the Client.

• Notwithstanding any other provision, the Client agrees that Proview may terminate this Agreement and repossess the Equipment in the event that the Client:

• fails to pay any hiring charges within the due date as set out in Proview’s invoice;
• does or permits any act or thing to be done to the Equipment by way of which Proview’s right in the equipment may be prejudiced;
• if the Client (an individual) becomes bankrupt or in the case of a company, becomes insolvent, an order is made that it be wound up or a liquidator appointed, a receiver or manager is appointed to any of its assets, or if the Client ceases or threatens to cease, to carry on business; and
• commits a breach of any of these conditions of hire.

• In the event that repossession rights as set out above are afforded to Proview, the Client authorises Proview, its directors, servants and agents to enter upon any premises occupied by, or being used by, the Client, and to search such premises and to remove the Equipment therefrom. The Client indemnifies Proview against any Claims, loss or expense that may be incurred by Proview as a result of having to invoke this provision and repossess the Equipment. In addition, the Client shall remain liable for all hire costs and any other monies due to Proview in connection with the supply of the Equipment up to the time of the due and proper return (or collection) of the Equipment to Proview.

6. Transportation and Delivery
   • Any transportation costs that the Client will incur are set out in the quote provided by Proview to the Client.

• The Client agrees that additional to any charges in the initial quote from Proview, it must pay additional charges if:

• Transportation is required outside of normal working hours;
• Transportation takes longer than allowed for in the initial quote;
• There are delays to access the Client’s nominated address or the site of hire, either for loading or unloading, outside of Proview’s control

• Proview will not be liable for any delay in delivery or failure to deliver for any reason.

• On delivery of the Equipment to the Client’s nominated address or the site of hire, the Client must notify Proview in writing of any alleged defect, shortage in quantity or damage.

• If a defect in the Equipment is alleged by the Client, and Proview, acting reasonably, agrees and accepts the Client’s position, Proview’s liability is limited to the replacement or the repair of the affected Equipment.

• Where the Client requires Equipment on a job site or yard or any non-residential premises, it must ensure:

• The address is ready for the sale offloading and delivery and, where required, for the safe installation of the Equipment
• The address has ground conditions that are suitable and adequate to support the Equipment (and the maximum live load of any structures intended to be built).
• All overhead and in-ground services at the Site are located and identified or relocated, protected or temporarily shut down as necessary to ensure a safe working environment (including delivery/installation and removal of the Equipment) and that all necessary authority, consents and approvals are obtained for the lawful use and erection of the Equipment, including payment of fees for such approvals.
• Unless Proview is engaged to erect any scaffolding, Proview is not liable in any way for any Claim of any kind in connection with the delivery and erection of the Equipment.
• Any hazard(s) must be clearly identified by the Client prior to any works commencing and must be fully addressed and resolved prior to any delivery of Equipment or the provision of Services by Proview.

7. Equipment Hire
   • The Client acknowledges and accepts that it is absolutely and solely responsible and liable for the Equipment and the manner of use from the date of delivery until the Equipment is returned or collected by Proview in accordance with these terms and conditions. The Client agrees and accepts that at all times, it must:

• Use and operate the Equipment for its intended use and purpose and safely and strictly in accordance within Australian laws and regulations, including but not limited to Australian Building and Industry Codes as well as any applicable Australian Health and Safety legislation;
• Ensure that any person using the Equipment is suitably instructed in its safe and proper use, qualified and trained and where applicable, holds the required certificate or competency or licence;
• Ensure that no person(s) using the Equipment is under the influence of alcohol or drugs;
• Not alter, move or relocate the Equipment (or any part of it) without Proview’s prior written consent;
• Not expose the Equipment to any hazardous material, including but not limited to asbestos. In the case that Equipment has been exposed to any hazardous or dangerous material, the Client must immediately notify Proview and must ensure that the Equipment is cleaned and decontaminated with best industry practice. Under no circumstances will Proview accept Equipment that has not been cleaned and the Client will indemnify Proview for any losses that it incurs for a breach of this provision.

• The Client also agrees and accepts that Proview may from time to time inspect its Equipment and must do all things necessary to allow and facilitate an inspection by Proview.

• In the event that the Equipment breaks down, fails or becomes unsafe at any time during the Hire Period, the Client must immediately stop using the Equipment and take all necessary steps to prevent injuries to any persons or damage to any property as a result of the condition of the Equipment. The client must also immediately notify Proview in writing of such breakdown, failure or defect.

• In the event of a breakdown or failure of the Equipment, the Client may not repair or attempt to repair the Equipment and may not have any repairs effected to the Equipment by any person other than a person authorised or approved by Proview.

• The Client agrees and accepts that it may not have a Claim of any kind against Proview for any delay, loss or damage of any kind directly or indirectly arising out of or in connection with the late or non-delivery, failure or defect in the Equipment.

• The date upon which the Client advises of termination of the Hire Period shall in all cases be treated as a full day’s hire.

• The Client is responsible to pay Proview the value of any unreturned and/or damaged equipment.

• Should the Client fail to return the equipment on time, then additional hire charges apply at the daily or weekly rate.

• This agreement does not imply, intend, or signify a partnership in the ownership of the equipment between Proview and the Client. Proview always maintains Title over the equipment during and after the hire period.

8. Risk and Indemnity
   • All risk in the Equipment supplied for hire by Proview passes to the Client at the time that the Equipment is delivered to the Client’s nominated address or the site of hire and the risk remains with the Client until the Equipment is returned to Proview in accordance with the provisions of these terms and conditions.

• The Client indemnifies Proview against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice to any claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Client or which the Client may sustain, pay or incur in connection of or as a result of the Equipment delivered or Services provided by Proview, unless such claim or breach shall be directly and solely attributable to any breach of contract or negligence by Proview or its duly authorised employee or agent.

• The Client is solely liable for the safekeeping of the Equipment and indemnifies Proview against all Claims in connection with any kind to the Equipment however so caused.

• The Client unconditionally and irrevocably indemnifies Proview for all and any claims that arise in connection with any injury (or death) that is directly or indirectly arising out of or in connection with the Equipment and any use of the Equipment however arising, whether authorised or unauthorised, including erection and dismantling, and including without limitation, where the Equipment is being erected or used or operated for any reason by any employee, servant or agent of Proview.
• The Client unconditionally and irrevocably indemnifies Proview for all and any claims that arise in connection with any injury (or death) that is directly or indirectly arising out of or in connection to delivery, loading & unloading of Goods.

9. PPSA
   • To protect Proview’s security interest in the Equipment and Services provided until payment, Proview may choose to register this Agreement between the parties under the Personal Properties Securities Act 2009 “PPSA”. The Client agrees to do all things necessary to facilitate such registration including providing consent to Proview to record details of this Agreement on the Personal Property Securities Register (“PPSR”) and agrees to do all things necessary and reasonably required by Proview to effect such registration on the PPSR.

• Proview may register an actual or impending security interest (in any manner Proview considers appropriate) in relation to any security interest in the Equipment and the proceeds arising in respect of any dealing in the Equipment contemplated or constituted by any contract for the supply of Equipment and by these terms and conditions.

• Proview may at any time register a financing statement or financing charge statement in respect of a security interest (including any purchase money security interest).

• The Client waives any right or entitlement to receive notice of the registration of any security interest (s) created by this instrument on the PPSR. The Client also undertakes to:

• Promptly signing any further documents and/or provide any further information (such information to be complete, accurate, and up to date in all respects) which Proview may reasonably require to:

• Facilitate the registration and maintenance of any security interest under the PPSA;
• Register any document required to be registered under the PPSA;
• Register a refinancing statement or financing charge statement;
• Correct a defect in a statement referred to in this provision;
• To ensure that Proview’s security position and its rights and obligations, are not adversely affected by the PPSA.

• Not register a refinancing change statement in respect of a security interest contemplated or constituted by these terms and conditions without Proview’s prior written consent; and

• Not create or purport to create any security interest in the Equipment, nor register, or permit to be registered, a financing statement or a refinancing change statement in relation to the Equipment in favour of a third party without Proview’s prior written consent.

• Immediately inform Proview of any material change in its business practices which could affected Proview’s Security Interest and notify Proview in writing of any change to the Client’s details set out in the Client’s application to Proview, within three (3) business days of such change.

• Proview 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.

• The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

• The Client also waives their rights as a grantor and/or debtor under sections 142 and 143 of the PPSA.

• The Client acknowledges and agrees that by accepting the terms and conditions of this Agreement, it will constitute a Security Agreement that covers the Collateral for the purposes of the PPSA.

• The Client acknowledges and agrees that Proview (as Secured Party) holds a Security Interest over all of the present and after acquired goods supplied by Proview to the Client and any proceeds from the sale of those goods (“Collateral”). In the event that no Equipment or goods are supplied (and the provision of for Services only), the Client charges all present and after acquired property (which it owns or may own in the future) as security for the obligation of the Client to pay for the Services provided by Proview to the Client.

• The Client also acknowledges and agrees that services provided to the Client on credit terms from Proview will constitute a purchase money security interest under section 14 of the PPSA (“PMSI”). The PMSI granted will continue to apply to any goods coming into existence or proceeds of sale of goods coming into existence at a future date.

• Any Proview Security Interest will be a continuing and subsisting interest with the priority to the fullest extent permitted by law over all registered or unregistered Security Interest.

• All Equipment hired by or for or to the Client will be registered until the Equipment is returned to Proview in accordance with the provisions of these terms and conditions.

• The Client must not charge, mortgage, pledge or create any form of security interest over, or otherwise deal with the Equipment in any way other than its intended use and purpose.

10. Insurance

The Client agrees and accepts that:

• it must at all times during the Hire Period keep in force at its own cost an insurance policy with a reputable company to cover the loss of, or damage to, the Equipment, for its full insurable value, for any cause whatsoever during the Hire Period, including a policy of public liability of not less than $20 million per event in respect of the Equipment, its possession, use and operation and including cover against Force Majeure, bodily injury, death and third-party property damage;

• it must notify Proview within 24 hours of any event that may give rise to a claim under its insurance policy that in any way affects the Equipment or the provision of Services; and

• Proview will be entitled to ask for evidence of any insurance prior to the delivery of any Equipment or the provision of any Services to the Client.

11. Warranty
    
    The Client represents and warrants to Proview that all information and representations that the Client, or any person acting on the Client’s behalf has given in connection with the transactions between the parties are true and correct and that the Client has not failed to disclose to Proview anything relevant to Proview’s decision to have dealings with the Client and that no court proceedings or dispute is current that may have an adverse effect on performing the Client’s obligations under this Agreement.

12. Building and Construction Industry Security of Payments Act 1999

At Proview’s sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.

Nothing in this Agreement is intended to have effect of contracting out any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.

13. Dispute Resolution

When a dispute arises between the parties, the Client agrees to comply with Proview’s dispute resolution process. To this end a party with a complaint against the other is first required to notify the other of the dispute by giving written notice specifying the nature of the dispute, the outcome required and the action believed necessary under the circumstances that will assist both in settling the dispute.

14. GST

Goods and Services Tax (GST) will be charged on those Services or goods provided that attract GST at the applicable rate. If a Service or goods constitutes a taxable supply, the Client must pay the GST applicable to that Service, subject to Proview providing a tax invoice to the Client. The payment of GST is in addition to any other consideration payable by the Client.

Subject to the Client’s right to a valid tax invoice, the Client must pay to Proview an amount equivalent to the GST Amount payable in respect of any taxable supply by Proview.

The Client agrees to indemnify Proview and hold it harmless in respect of any GST payable with regard to any supply made by Proview to the Client or at the Client’s satisfaction.

15. Confidentiality
    

• The Client acknowledges that all information relating to this
         Agreement and any other commercially sensitive confidential   
          information relating to this Agreement is strictly confidential.
• The Client must not, without the prior written consent of Proview:

• Disclose confidential information to any other person or entity;
• use any confidential information for any reason other than the furtherance of the business relationship between Proview and the Client.

16. Jurisdiction

This Agreement and any other contract or Agreement between the parties is governed by the laws of the State of New South Wales, Australia. The Client agreed to submit to the non-exclusive jurisdiction of the New South Wales Courts and courts of appeal therefrom for all purposes of or in connection with such Agreement or contracts between the parties.

17. Individual Guarantee

If the Client is a company, at least two directors must provide a personal guarantee wherein they personally guarantee the punctual performance of any payments (as set out in this Agreement) and/or all the obligations of the company Client.

Further, all guarantors shall be jointly and severally liable for the performance of all terms, covenants, and conditions of this Agreement and/or any other agreement or contract between the parties. The guarantors jointly and severally authorise Proview to exchange information about the creditworthiness of either the Client or the guarantors with any credit reporting agency at any time during the term of the Agreement.

18. Assignment
    
    The Client may not transfer or assign or purport to transfer or assign of its obligations or rights under or in connection with this Agreement to any other corporation or person under any circumstance. This is an essential term of this Agreement.

19. Intellectual Property

The Client must not transfer, or attempt to transfer, alter or remove any right, title or interest in any intellectual property rights (including but not limited to trademarks, patents or any other rights held at common law) of Proview. All intellectual property (including copyright) that is in any way related to the Equipment, its use as well as any designs, drawings, specifications and sketches are the property of Proview. This clause shall not merge on completion.  

The Client agrees and accepts that Proview may take photos of its Equipment, the Client’s project and the Site where the Services are performed. Notwithstanding any other provision, the Client accepts that Proview will become the beneficial owner of any photos that may be taken and consents to the photos being used and reproduced by Proview for any purposes it deems fit, including marketing and promotion.

20. Acceptance
    • 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.
    • These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Proview.
    • 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.

21. Errors and Omissions
    • The Client acknowledges and accepts that Proview shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by Proview in the formation and/or administration of this contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by Proview in respect of the Services.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of Proview; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

22. Change in Control
    • The Client shall give Proview 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, change in trustees, or business practice). The Client shall be liable for any loss incurred by Proview as a result of the Client’s failure to comply with this clause.

23. Brochures and Promotional Material
    • The Client acknowledges that description and illustrations in Proview’s brochures, promotional material and advertising are not to be taken as an exact representation of the articles described, and are intended to present a general idea of the Goods. All drawings, brochures and electronic information supplied are informative only. Proview accepts no responsibility for the accuracy of illustrations, designs, samples, weights, dimensions, capacities and other particulars of the Goods, and will not be responsible for the cost of additional work or consequential loss or damage caused by any defect or otherwise in Brochures and Promotional Material. All samples, illustrations, designs and specifications supplied to the Client remain the property of Proview and may not be copied, reproduced or used in part or whole without the prior written consent from Proview.

24. Price and Payment
    • At Proview’s sole discretion the Price shall be either:
      • as indicated on any invoice provided by Proview to the Client; or
      • the Price as at the date of delivery of the Goods according to Proview’s current price list; or
      • Proview’s quoted price (subject to clauses 2 to 6.4) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    • The Client acknowledges that any Price quoted or advertised is subject to change without notice.
    • Proview reserves the right to change the Price:
      • if a variation to the Goods which are to be supplied is requested; and/or
      • in the event of increases to Proview in the cost of labour or materials, or fluctuations in currency exchange rates, which are beyond Proview’s control.
    • Variations will be charged for on the basis of Proview’s quotation, and will be detailed in writing, and shown as variations on Proview’s invoice. The Client shall be required to respond to any variation submitted by Proview within ten (10) working days. Failure to do so will entitle Proview 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.
    • The Client shall be responsible for, and will pay:
      • all costs associated with the pickup and delivery of the Goods to and from the company depot, and if necessary shall provide loading equipment as well as all packaging costs;
      • any additional costs or expenses not specifically provided for in this agreement, including but not limited to, any taxes, fees, stamp duty, levy or charge imposed by government, or semi-government authority;
      • any extra costs due to the difference between data supplied by the Client and the actual site shall be paid by the Client.
    • At Proview’s sole discretion, a non-refundable deposit may be required.
    • Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Proview, which may be:
      • on delivery of the Goods;
      • before delivery of the Goods;
      • by way of instalments/progress payments in accordance with Proview’s payment schedule;
      • thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Proview.
    • Payment may be made by cash, cheque, bank cheque, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Proview.
    • 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 Proview nor to withhold payment of any invoice because part of that invoice is in dispute.
    • Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Proview an amount equal to any GST Proview must pay for any supply by Proview under this or any other agreement for the sale/hire 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.

25. Delivery of Goods
    • Delivery (“Delivery”) of the Goods is taken to occur at the time that:
      • the Client or the Client’s nominated carrier takes possession of the Goods at Proview’s address; or
      • Proview (or Proview’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
    • At Proview’s sole discretion, the cost of delivery is included in the Price.
    • Proview 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.
    • The Client must take delivery by receipt or collection of the Goods whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Proview shall be entitled to charge a reasonable fee for redelivery of the Goods and/or the storage of the Goods.
    • Proview shall not be responsible for delay or non-completion of the job for which the Goods are purchased/hired resulting from an act beyond the reasonable control of Proview, including but not limited to, industrial action, strikes, lockouts, epidemics, fire, war, government actions, commotion, riot, floods or inclement weather.
    • The Client is responsible for unloading the Goods at the destination.
    • Proview provides a 15-minute window for the Client to arrange the unloading of Goods by hand, forklift or other means. After the 15 minutes Proview reserves the right to charge additional waiting time for unloading delays.
    • The Client accepts responsibility for any risk of injury during the unloading of the Goods.

26. Title to the Goods

• Where this is a hire agreement:
  • the Goods is and will at all times remain the absolute property of Proview, however the Client accepts full responsibility for:
    • the safekeeping of the Goods and indemnifies Proview for all loss, theft, or damage to the Goods howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client; and
    • shall keep Proview indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Goods during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.

Furthermore, the Client will insure, or self-insure, Proview’s interest in the Goods against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Goods. Further the Client will not use the Goods nor permit it to be used in such a manner as would permit an insurer to decline any claim.

• If the Client fails to return the Goods to Proview then Proview or Proview’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods is situated and take possession of the Goods, without being responsible for any damage thereby caused.
• The Client is not authorised to pledge Proview’s credit for repairs to the Goods or to create a lien over the Goods in respect of any repairs.

• Where is this an agreement for the purchase of the Goods:
  • Proview and the Client agree that ownership of the Goods shall not pass until:
    • the Client has paid Proview all amounts owing to Proview; and
    • the Client has met all of its other obligations to Proview.
  • Receipt by Proview 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.
  • It is further agreed that:
    • until ownership of the Goods passes to the Client in accordance with clause (a) that the Client is only a bailee of the Goods and must return the Goods to Proview on request.
    • the Client holds the benefit of the Client’s insurance of the Goods on trust for Proview and must pay to Proview the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
    • 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 Proview and must pay or deliver the proceeds to Proview on demand.
    • 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 Proview and must sell, dispose of or return the resulting product to Proview as it so directs.
    • the Client irrevocably authorises Proview to enter any premises where Proview believes the Goods are kept and recover possession of the Goods.
    • Proview may recover possession of any Goods in transit whether or not delivery has occurred.
    • 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 Proview.
    • Proview may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

27. Security and Charge

• In consideration of Proview 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).
• The Client indemnifies Proview from and against all Proview’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Proview’s rights under this clause.
• The Client irrevocably appoints Proview and each director of Proview as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.

28. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

• The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Proview 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 Proview to inspect the Goods.
• 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).
• Proview acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
• Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Proview makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Proview’s liability in respect of these warranties is limited to the fullest extent permitted by law.
• If the Client is a consumer within the meaning of the CCA, Proview’s liability is limited to the extent permitted by section 64A of Schedule 2.
• If Proview is required to replace the Goods under this clause or the CCA, but is unable to do so, Proview may refund any money the Client has paid for the Goods.
• If the Client is not a consumer within the meaning of the CCA, Proview’s liability for any defect or damage in the Goods is:
  • limited to the value of any express warranty or warranty card provided to the Client by Proview at Proview’s sole discretion;
  • limited to any warranty to which Proview is entitled, if Proview did not manufacture the Goods;
  • otherwise negated absolutely.
• Subject to this clause 11, returns will only be accepted provided that:
  • the Client has complied with the provisions of clause 1; and
  • Proview has agreed that the Goods are defective; and
  • the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
  • the Goods are returned in as close a condition to that in which they were delivered as is possible.
• Notwithstanding clauses 1 to 11.8 but subject to the CCA, Proview shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
  • the Client failing to properly maintain or store the Goods;
  • the Client using the Goods for any purpose other than that for which they were designed;
  • the Client continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
  • the Client failing to follow any instructions or guidelines provided by Proview;
  • fair wear and tear, any accident, or act of God.
• Notwithstanding anything contained in this clause if Proview is required by a law to accept a return then Proview will only accept a return on the conditions imposed by that law.

29. Default and Consequences of Default

• 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 Proview’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
• If the Client owes Proview any money the Client shall indemnify Proview from and against all costs and disbursements incurred by Proview in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Proview’s contract default fee, and bank dishonour fees).
• Further to any other rights or remedies Proview may have under this contract, if a Client has made payment to Proview, 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 Proview under this clause 13 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.
• Without prejudice to Proview’s other remedies at law Proview shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Proview shall, whether or not due for payment, become immediately payable if:
  • any money payable to Proview becomes overdue, or in Proview’s opinion the Client will be unable to make a payment when it falls due;
  • the Client has exceeded any applicable credit limit provided by Proview;
  • 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
  • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

30. Cancellation

• Without prejudice to any other remedies Proview may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Proview may suspend or terminate the supply of Goods to the Client. Proview will not be liable to the Client for any loss or damage the Client suffers because Proview has exercised its rights under this clause.
• Proview 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 Proview shall repay to the Client any money paid by the Client for the Goods. Proview shall not be liable for any loss or damage whatsoever arising from such cancellation.
• 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 Proview as a direct result of the cancellation (including, but not limited to, any loss of profits and any cost of materials, labour and other costs incurred by Proview).

31. Hire of Goods

• Hire charges shall commence from the time the Goods leave Proview’s premises and continue until the return of the Goods to Proview’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
• The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
• No allowance whatsoever can be made for time during which the Goods are not in use for any reason, unless Proview confirms special prior arrangements in writing. In the event of Goods breakdown provided the Client notifies Proview immediately, hiring charges will not be payable during the time the Goods are not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
• The Client shall:
  • maintain the Goods as is required by Proview;
  • notify Proview immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Goods by giving such notification;
  • satisfy itself at commencement that the Goods are suitable for its purposes;
  • operate the Goods safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by Proview or posted on the Goods;
  • ensure that all persons operating or erecting the Goods are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Goods and shall provide evidence of the same to Proview upon request;
  • comply with all occupational health and safety laws relating to the Goods and their operation;
  • on termination of the hire, deliver the Goods complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to Proview;
  • keep the Goods in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Goods;
  • not alter or make any additions to the Goods including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Goods or in any other manner interfere with the Goods;
  • employ the Goods solely in its own work and shall not permit the Goods or any part thereof to be used by any other party for any other work;
  • not exceed the recommended or legal load and capacity limits of the Goods;
  • not use or carry any illegal, prohibited or dangerous substance in, or on, the Goods;
  • not fix any of the Goods in such a manner as to make them legally a fixture forming part of any freehold;
• Immediately on request by Proview the Client will pay:
  • the new list price of any Goods that are for whatever reason destroyed, written off or not returned to Proview;
  • all costs incurred in cleaning the Goods;
  • all costs of repairing any damage caused by the ordinary use of the Goods up to an amount equal to ten percent (10%) of the new list price of the Goods;
  • the cost of repairing any damage to the Goods caused by the negligence of the Client or the Client’s agent;
  • the cost of repairing any damage to the Goods caused by vandalism, or (in Proview’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Goods by the Client;
  • any lost hire fees Proview would have otherwise been entitled to for the Goods, under this, or any other hire agreement.

32. Sale of Goods

• 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.
• If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Proview is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Proview is sufficient evidence of Proview’s rights to receive the insurance proceeds without the need for any person dealing with Proview to make further enquiries.
• If the Client requests Proview to leave Goods outside Proview’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
• In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client 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 Proview as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Proview has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 4.
• Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

33. Privacy Act 1988

• The Client agrees for Proview 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 Proview.
• The Client agrees that Proview may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
  • to assess an application by the Client; and/or
  • to notify other credit providers of a default by the Client; and/or
  • 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
  • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
• The Client consents to Proview being given a consumer credit report to collect overdue payment on commercial credit.
• The Client agrees that personal credit information provided may be used and retained by Proview for the following purposes (and for other agreed purposes or required by):
  • the provision of Goods; and/or
  • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
  • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  • enabling the collection of amounts outstanding in relation to the Goods.
• Proview may give information about the Client to a CRB for the following purposes:
  • to obtain a consumer credit report;
  • allow the CRB to create or maintain a credit information file about the Client including credit history.
• The information given to the CRB may include:
  • personal information as outlined in 1 above;
  • name of the credit provider and that Proview is a current credit provider to the Client;
  • whether the credit provider is a licensee;
  • type of consumer credit;
  • 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);
  • 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 Proview has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
  • information that, in the opinion of Proview, the Client has committed a serious credit infringement;
  • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
• The Client shall have the right to request (by e-mail) from Proview:
  • a copy of the information about the Client retained by Proview and the right to request that Proview correct any incorrect information; and
  • that Proview does not disclose any personal information about the Client for the purpose of direct marketing.
• Proview 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.
• The Client can make a privacy complaint by contacting Proview via e-mail. Proview 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

34. Unpaid Seller’s Rights

• Where the Client has left any item with Proview for repair, modification, exchange or for Proview to perform any other service in relation to the item and Proview has not received or been tendered the whole of any monies owing to it by the Client, Proview shall have, until all monies owing to Proview are paid:
  • a lien on the item; and
  • 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.
• The lien of Proview shall continue despite the commencement of proceedings, or judgment for any monies owing to Proview having been obtained against the Client.

35. Building and Construction Industry Security of Payments Act 1999

• At Proview’s sole discretion, if there are any disputes or claims for unpaid Goods then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
• Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.

 

36. Trusts

 

• If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Proview may have notice of the Trust, the Client covenants with Proview as follows:
  • the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
  • the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
  • The Client will not without consent in writing of Proview (Proview will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
    • the removal, replacement or retirement of the Client as trustee of the Trust;
    • any alteration to or variation of the terms of the Trust;
    • any advancement or distribution of capital of the Trust; or
    • any resettlement of the trust property.

37. General

• 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.
• These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which Proview has its principal place of business, and are subject to the jurisdiction of the courts in that state.
• Subject to clause 11 Proview 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 Proview of these terms and conditions (alternatively Proview’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods hire).
• Proview may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
• The Client cannot licence or assign without the written approval of Proview.
• Proview 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 Client agrees and understands that they have no authority to give any instruction to any of Proview’s sub-contractors without the authority of Proview.
• The Client agrees that Proview may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Proview to provide Goods to the Client.
• 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.
• Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.

38. Privacy Policy
    • Details that you provide to use may be stored and collected (Personal Information).
    • Proview understands that the Client’s privacy is of upmost importance and should be maintained throughout their dealings with Proview.
    • Proview recognises its statutory obligations under the Privacy Act 1988 (Cth) and deals with Personal Information in a manner which is consistent with these obligations.
    • This section informs the Clients of our policies regarding collection, use and disclosure of Personal Information we receive.
    • We collect your Personal Information for the primary purpose of providing services to you, which includes but is not limited to delivery of goods, billing services and marketing purposes.
    • Personal information is stored in a manner that reasonably protects it from misuse and loss and from unauthorised access, modification or disclosure.
      • When and if your Personal Information is no longer needed for the purpose for which it is obtained, we will take reasonable steps to destroy or permanently de-identify your Personal Information.
      • However, Proview accepts no liability for unauthorised use of information.
    • Clients may request access to their personal information provided the request is made in writing.
      • We will not charge a fee for the access request, but may charge an administrative fee for providing a copy of your Personal Information.
      • In order to protect your Personal Information, we may require identification from you before releasing the requested information.
    • Personal Information may be disclosed where required or authorised by law.
    • The Customer may make a complaint that his/her privacy has been breached by contacting Proview via email on accounts@proviewscaffolding.com.au

39. Notices
    
    

Notice Any notice to be given to the Client shall be deemed to be given upon its being posted or sent by facsimile to the address or facsimile number of the Client or to the Client’s registered office or to the Client’s last known address.