1. Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “GRAF” means GRAF Australia Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of GRAF Australia Pty Ltd
1.3 “Buyer” means the person/s, entities or any person acting on behalf of and with the authority of the Buyer requesting GRAF to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Buyer, is a reference to each Buyer jointly and severally; and
(b) if the Buyer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Buyer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Buyer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by GRAF to the Buyer at the Buyer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Buyer does not wish to allow Cookies to operate in the background when ordering from the website, then the Buyer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between GRAF and the Buyer in accordance with clause 5 below.
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
2.1 The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer places an order for or accepts Delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 Any advice, recommendation, information, assistance or service provided by GRAF in relation to Goods or Services supplied is given in good faith is based on GRAFs own knowledge and experience and shall be accepted without liability on the part of GRAF and it shall be the responsibility of the Buyer to confirm the accuracy and reliability of the same in light of the use to which the Buyer makes or intends to make of the Goods or Services.
2.5 The Buyer acknowledges and accepts that:
(a) where a Buyer wishes to operate a credit account with GRAF, a credit application must be completed and approved with a credit limit established first, prior to the initial delivery and/or supply of Goods;
(b) in the event that the supply of Goods request exceeds the Buyer’s credit limit and/or the account exceeds the payment terms, GRAF reserves the right to refuse delivery and/or request an alternative payment method; and
(c) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, GRAF reserves the right to vary the Price with alternative Goods as per clause 5.2, subject to prior confirmation and agreement of both parties. GRAF also reserves the right to halt all Services until such time as GRAF and the Buyer agree to such changes. GRAF shall not be liable to the Buyer for any loss or damage the Buyer suffers due to GRAF exercising its rights under this clause.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Buyer acknowledges and accepts that GRAF shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by GRAF in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by GRAF in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of GRAF; the Buyer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Buyer shall give GRAF not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Buyer shall be liable for any loss incurred by GRAF as a result of the Buyer’s failure to comply with this clause.
5. Price and Payment
5.1 At GRAF’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by GRAF to the Buyer; or
(b) the Price as at the date of Delivery of the Goods according to GRAF’s current price list; or
(c) GRAF’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 GRAF reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans, designs or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, site and/or Buyer requirements, obscured site defects which require remedial work, or prerequisite work by any third party not being completed) which are only discovered on commencement of the Services; or
(d) if during the course of the Services, the Goods are not or cease to be available from GRAF’s third party suppliers, then GRAF reserves the right to provide alternative Goods; or
(e) in the event of increases to GRAF in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond GRAF’s control.
5.3 Variations will be charged for on the basis of GRAF’s quotation, and will be detailed in writing, and shown as variations on GRAF’s invoice. The Buyer shall be required to respond to any variation submitted by GRAF within ten (10) working days. Failure to do so will entitle GRAF 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.
5.4 At GRAF’s sole discretion, a non-refundable deposit may be required.
5.5 Time for payment for the Goods being of the essence, the Price will be payable by the Buyer on the date/s determined by GRAF, which may be:
(a) the date specified on any invoice or other form as being the date for payment; or
(b) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Buyer by GRAF.
5.6 Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Buyer and GRAF.
5.7 GRAF may in its discretion allocate any payment received from the Buyer towards any invoice that GRAF determines and may do so at the time of receipt or at any time afterwards. On any default by the Buyer GRAF may re-allocate any payments previously received and allocated. In the absence of any payment allocation by GRAF, payment will be deemed to be allocated in such manner as preserves the maximum value of GRAF’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.8 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by GRAF nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Buyer must pay to GRAF an amount equal to any GST GRAF must pay for any supply by GRAF under this or any other agreement for the sale of the Goods. The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the Price. In addition, the Buyer 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.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Buyer or the Buyer’s nominated carrier takes possession of the Goods at GRAF’s address; or
(b) GRAF (or GRAF’s nominated carrier) delivers the Goods to the Buyer’s nominated address even if the Buyer is not present at the address.
6.2 At GRAF’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
6.3 GRAF 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.
6.4 Any time specified by GRAF for Delivery of the Goods is an estimate only and GRAF will not be liable for any loss or damage incurred by the Buyer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that GRAF is unable to supply the Goods as agreed solely due to any action or inaction of the Buyer, then GRAF shall be entitled to charge a reasonable fee for redelivery and/or storage.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Buyer on Delivery and the Buyer must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Buyer, GRAF is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by GRAF is sufficient evidence of GRAF’s rights to receive the insurance proceeds without the need for any person dealing with GRAF to make further enquiries.
7.3 If the Buyer requests GRAF to leave Goods outside GRAF’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Buyer’s sole risk.
7.4 The Buyer acknowledges that Goods supplied may:
(a) exhibit variations in shade tone, colour, texture, markings, surface and finish, and occlusions, and indentations. GRAF will make every effort to match batches/samples of the Goods supplied in order to minimise such variations, but shall not be liable in any way whatsoever where such variations occur; and
(b) fade or change colour over time; and
(c) expand, contract or distort as a result of exposure to heat, cold, weather; and
(d) mark or stain if exposed to certain substances; and
(e) be damaged or disfigured by impact or scratching.
8. Accuracy of Buyer’s Plans and Measurements
8.1 In the event the Buyer gives information relating to the Services (including plans, specifications, measurements, quantities and other information provided by the Buyer):
(a) it is the Buyer’s responsibility to verify the accuracy of the information before the Buyer or GRAF places an order based on the information. GRAF accepts no responsibility for any loss, damages, or costs however resulting from the Buyer’s failure to comply with this clause;
(b) GRAF shall be entitled to rely on the accuracy of such information. The Buyer acknowledges and agrees that in the event that any of this information provided by the Buyer is inaccurate, GRAF accepts no responsibility for any loss, damages, or costs however resulting therefrom.
8.2 Where the Buyer is to supply GRAF with any design specifications (including, but not limited to CAD drawings) the Buyer shall be responsible for providing accurate data. GRAF shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Buyer.
9. Specifications
9.1 The Buyer acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in GRAF’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Buyer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by GRAF;
(b) while GRAF may have provided information or figures to the Buyer regarding the performance and/or sustainability of the Goods, the Buyer acknowledges that GRAF has given these in good faith, and are estimates based on industry prescribed estimates.
9.2 The Buyer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
10. Access
10.1 The Buyer shall ensure that GRAF has clear and free access to effect delivery of the Goods. GRAF shall not be liable for any loss or damage to the delivery site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of GRAF.
11. Compliance with Laws
11.1 The Buyer and GRAF shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
11.2 The Buyer shall obtain (at the expense of the Buyer) all licenses and approvals that may be required for the Services.
11.3 The Buyer agrees that the site will comply with any occupational health and safety laws relating to the worksite and any other relevant safety standards or legislation.
12. Title
12.1 GRAF and the Buyer agree that ownership of the Goods shall not pass until:
(a) the Buyer has paid GRAF all amounts owing to GRAF; and
(b) the Buyer has met all of its other obligations to GRAF.
12.2 Receipt by GRAF of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that, until ownership of the Goods passes to the Buyer in accordance with clause 12.1:
(a) the Buyer is only a bailee of the Goods and must return the Goods to GRAF on request;
(b) the Buyer holds the benefit of the Buyer’s insurance of the Goods on trust for GRAF and must pay to GRAF the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Buyer 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 Buyer sells, disposes or parts with possession of the Goods then the Buyer must hold the proceeds of any such act on trust for GRAF and must pay or deliver the proceeds to GRAF on demand;
(d) the Buyer should not convert or process the Goods or intermix them with other goods but if the Buyer does so then the Buyer holds the resulting product on trust for the benefit of GRAF and must sell, dispose of or return the resulting product to GRAF as it so directs;
(e) the Buyer irrevocably authorises GRAF to enter any premises where GRAF believes the Goods are kept and recover possession of the Goods;
(f) GRAF may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Buyer 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 GRAF;
(h) GRAF may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Buyer.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Buyer 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 Buyer to GRAF for Services – that have previously been supplied and that will be supplied in the future by GRAF to the Buyer.
13.3 The Buyer 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 GRAF may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, GRAF 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 GRAF;
(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 GRAF;
(e) immediately advise GRAF 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.
13.4 GRAF and the Buyer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5 The Buyer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Buyer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by GRAF, the Buyer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Buyer must unconditionally ratify any actions taken by GRAF under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of GRAF agreeing to supply the Goods, the Buyer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Buyer either now or in the future, to secure the performance by the Buyer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Buyer indemnifies GRAF from and against all GRAF’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising GRAF’s rights under this clause.
14.3 The Buyer irrevocably appoints GRAF and each director of GRAF as the Buyer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Buyer’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Buyer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify GRAF in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Buyer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Buyer must allow GRAF to inspect the Goods.
15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
15.3 GRAF acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, GRAF makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. GRAF’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Buyer is a consumer within the meaning of the CCA, GRAF’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If GRAF is required to replace the Goods under this clause or the CCA, but is unable to do so, GRAF may refund any money the Buyer has paid for the Goods.
15.7 If the Buyer is not a consumer within the meaning of the CCA, GRAF’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Buyer by GRAF at GRAF’s sole discretion;
(b) limited to any warranty to which GRAF is entitled, if GRAF did not manufacture the Goods;
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of clause 15.1; and
(b) GRAF has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Buyer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, GRAF 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 Buyer failing to properly maintain or store any Goods;
(b) the Buyer using the Goods for any purpose other than that for which they were designed;
(c) the Buyer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Buyer failing to follow any instructions or guidelines provided by GRAF;
(e) fair wear and tear, any accident, or act of God.
15.10 In the case of second hand Goods, unless the Buyer is a consumer under the CCA, the Buyer 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 GRAF as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Buyer acknowledges and agrees that GRAF has agreed to provide the Buyer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 15.10.
15.11 Prior to GRAF accepting (at their absolute discretion) non-defective Goods for return the Buyer acknowledges and accepts that the Buyer is required to submit a Goods Return Authorisation form (available upon request by GRAF). Where such non-defective Goods are accepted for return, GRAF may require the Buyer to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.
15.12 Notwithstanding anything contained in this clause if GRAF is required by a law to accept a return then GRAF will only accept a return on the conditions imposed by that law.
15.13 Subject to clause 15.1, customised, or non-stocklist items or Goods made or ordered to the Buyer’s specifications are not acceptable for credit or return.
16. Intellectual Property
16.1 Where GRAF has designed, drawn or developed Goods for the Buyer, then the copyright in any designs and drawings and documents shall remain the property of GRAF. Under no circumstances may such designs, drawings and documents be used without the express written approval of GRAF.
16.2 The Buyer warrants that all designs, specifications or instructions given to GRAF will not cause GRAF to infringe any patent, registered design or trademark in the execution of the Buyer’s order and the Buyer agrees to indemnify GRAF against any action taken by a third party against GRAF in respect of any such infringement.
16.3 The Buyer agrees that GRAF may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which GRAF has created for the Buyer.
17. Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at GRAF’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Buyer owes GRAF any money the Buyer shall indemnify GRAF from and against all costs and disbursements incurred by GRAF in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, GRAF’s contract default fee, and bank dishonour fees).
17.3 Further to any other rights or remedies GRAF may have under this Contract, if a Buyer has made payment to GRAF, and the transaction is subsequently reversed, the Buyer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by GRAF under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Buyer’s obligations under this Contract.
17.4 Without prejudice to GRAF’s other remedies at law GRAF shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to GRAF shall, whether or not due for payment, become immediately payable if:
(a) any money payable to GRAF becomes overdue, or in GRAF’s opinion the Buyer will be unable to make a payment when it falls due;
(b) the Buyer has exceeded any applicable credit limit provided by GRAF;
(c) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
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. Cancellation
19.1 Without prejudice to any other remedies GRAF may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) under these terms and conditions GRAF may suspend or terminate the supply of Goods to the Buyer. GRAF will not be liable to the Buyer for any loss or damage the Buyer suffers because GRAF has exercised its rights under this clause.
19.2 GRAF 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 Buyer. On giving such notice GRAF shall repay to the Buyer any money paid by the Buyer for the Goods. GRAF shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Buyer cancels Delivery of Goods the Buyer shall be liable for any and all loss incurred (whether direct or indirect) by GRAF as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.4 Cancellation of orders for Goods made to the Buyer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20. Privacy Policy
20.1 All emails, documents, images or other recorded information held or used by GRAF is Personal Information, as defined and referred to in clause 20.3, and therefore considered Confidential Information. GRAF acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). GRAF acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Buyers Personal Information, held by GRAF that may result in serious harm to the Buyer, GRAF will notify the Buyer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Buyer by written consent, unless subject to an operation of law.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to GRAF in respect of Cookies where transactions for purchases/orders transpire directly from GRAF’s website. GRAF agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Buyer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to GRAF when GRAF sends an email to the Buyer, so GRAF may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Buyer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via GRAF’s website.
20.3 The Buyer agrees for GRAF to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Buyer in relation to credit provided by GRAF.
20.4 The Buyer agrees that GRAF may exchange information about the Buyer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Buyer; and/or
(b) to notify other credit providers of a default by the Buyer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Buyer including the Buyer’s repayment history in the preceding two (2) years.
20.5 The Buyer consents to GRAF being given a consumer credit report to collect overdue payment on commercial credit.
20.6 The Buyer agrees that personal credit information provided may be used and retained by GRAF 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 Buyer’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 Buyer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
20.7 GRAF may give information about the Buyer 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 Buyer including credit history.
20.8 The information given to the CRB may include:
(a) Personal Information as outlined in 20.3 above;
(b) name of the credit provider and that GRAF is a current credit provider to the Buyer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Buyer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(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 Buyer no longer has any overdue accounts and GRAF has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of GRAF, the Buyer has committed a serious credit infringement;
(h) advice that the amount of the Buyer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
20.9 The Buyer shall have the right to request (by e-mail) from GRAF:
(a) a copy of the Personal Information about the Buyer retained by GRAF and the right to request that GRAF correct any incorrect Personal Information; and
(b) that GRAF does not disclose any Personal Information about the Buyer for the purpose of direct marketing.
20.10 GRAF will destroy Personal Information upon the Buyer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
20.11 The Buyer can make a privacy complaint by contacting GRAF via e-mail. GRAF will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Buyer is not satisfied with the resolution provided, the Buyer can make a complaint to the Information Commissioner at www.oaic.gov.au.
21. Service of Notices
21.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
22. Trusts
22.1 If the Buyer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not GRAF may have notice of the Trust, the Buyer covenants with GRAF as follows:
(a) the Contract extends to all rights of indemnity which the Buyer now or subsequently may have against the Trust and the trust fund;
(b) the Buyer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Buyer against the Trust or the trust fund. The Buyer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Buyer will not without consent in writing of GRAF (GRAF will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Buyer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
23. Limitation of Liability
23.1 Whilst GRAF shall use their best endeavours to provide the Services based upon the instructions supplied by the Buyer. The Buyer acknowledges that resulting Goods made to the Buyer’s designs/specifications may result in damage or loss to property and/or serious or fatal injury to any person/s where an unknown design fault may be present.
23.2 The Buyer agrees to release and indemnify GRAF, their officers, directors, agents, servants, employees and shareholders from any and all liabilities, claims, demands or actions or causes of action whatsoever including any liability imposed by statute, arising out of any damage, loss or injury (including personal injury, death, property loss, delay, sickness, strike, terrorism, bankruptcy, war, quarantine, weather, upset, disappointment, inconvenience, or expense) to the Buyer or third parties due to the Services provided.
23.3 Subject to clause 15, GRAF shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by GRAF of these terms and conditions (alternatively GRAF’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24. General
24.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which GRAF has its principal place of business, and are subject to the jurisdiction of the courts in that state.
24.3 GRAF may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Buyer’s consent.
24.4 The Buyer cannot licence or assign without the written approval of GRAF.
24.5 GRAF 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 Buyer agrees and understands that they have no authority to give any instruction to any of GRAF’s sub-contractors without the authority of GRAF.
24.6 The Buyer agrees that GRAF may amend their general terms and conditions for subsequent future contracts with the Buyer by disclosing such to the Buyer in writing. These changes shall be deemed to take effect from the date on which the Buyer accepts such changes, or otherwise at such time as the Buyer makes a further request for GRAF to provide Goods to the Buyer.
24.7 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.
24.8 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
GRAF Australia PTY LTD
43B Sparks, Henderson
WA 6166
Phone: 1300 131 971
Fax: +61 08 6499 2688
Email: info@grafaustralia.com.au