TERMS & CONDITIONS

Definitions

  1. “Infusion Solutions” means: Fire Compliance Solutions Pty Ltd T/A Infusion Solutions Compliance Solutions, and assigns or any person acting on behalf of and with the authority of Fire Compliance Solutions Pty Ltd.

  2. “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting Infusion Solutions to provide the Tasks as specified in any proposal, quotation, order, invoice or other documentation, and:

  3. if there is more than one Customer, is a reference to each Customer jointly and severally; and

  4. if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and

  5. includes the Customer’s executors, administrators, successors and permitted assigns.

  6. “Task” means all Tasks (including consultation, routine maintenance and/or installation services) or Materials supplied by Infusion Solutions to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Tasks’ or ‘Materials’ shall be interchangeable for the other).

  7. “Price” means the Price payable (plus any GST where applicable) for the Tasks as agreed between Infusion Solutions and the Customer in accordance with clause 6 below.

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

 

Acceptance

  1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Tasks or services.

  2. 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 contract between the Customer and Infusion Solutions.

  3. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with The Electronic Transactions Act 1999 (Cth) or any other applicable provisions of that Act or any Regulations referred to in that Act.

  4. The Customer acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, Infusion Solutions reserves the right to vary the Price with suitable comparable Materials (or components of the Materials) in accordance with clause 6.2. Infusion Solutions also reserves the right to halt all Tasks until such time as Infusion Solutions and the Customer agree to such changes. Infusion Solutions shall not be liable to the Customer for any loss or damage the Customer suffers due to Infusion Solutions exercising its rights under this clause.

  5. Any advice, recommendation, information, assistance or service provided by Infusion Solutions in relation to Materials or Tasks supplied is given in good faith, is based on Infusion Solutions own knowledge and experience and shall be accepted without liability on the part of Infusion Solutions and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Materials and Tasks.

  6. If Infusion Solutions has been requested by the Customer to diagnose a fault that requires investigation, and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.

  7. Infusion Solutions has the right to postpone or refuse to provide Tasks where:

  8. unsafe or unsanitary conditions exist; or

  9. the access to the equipment is not accessible including but not limited to, confined spaces, to provide dry access to service equipment and assets.

 

Errors and Omissions

  1. The Customer acknowledges and accepts that Infusion Solutions shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

  2. resulting from an inadvertent mistake made by Infusion Solutions in the formation and/or administration of this contract; and/or

  3. contained in/omitted from any literature (hard copy and/or electronic) supplied by Infusion Solutions in respect of the Tasks.

  4. 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 Infusion Solutions; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.

 

Authorised Representatives

  1. The Customer acknowledges that Infusion Solutions shall (for the duration of the Tasks) liaise directly with one (1) authorised representative, that person shall have the full authority of the Customer to order any Tasks, and/or to request any variation thereto on the Customer’s behalf.

  2. The Customer accepts that they will be solely liable to Infusion Solutions for all additional costs incurred by Infusion Solutions in providing any Tasks, or variation/s requested thereto by the Customer’s duly authorised representative.

 

Change in Control

  1. The Customer shall give Infusion Solutions not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice).

  2. The Customer shall be liable for any loss incurred by Infusion Solutions as a result of the Customer’s failure to comply with this clause.

 

Price and Payment

  1. At Infusion Solutions sole discretion the Price shall be either:

  2. as indicated on invoices provided by Infusion Solutions to the Customer in respect of Tasks performed or Materials supplied; or

  3. Infusion Solutions quoted Price (subject to clause 6.2) which shall be binding upon Infusion Solutions provided that the Customer shall accept Infusion Solutions quotation in writing within thirty (30) days.

  4. Infusion Solutions reserves the right to change the Price:

  5. if a variation to the Materials which are to be supplied is requested; or

  6. if a variation to the Tasks originally scheduled (including any applicable plans or specifications) is requested; or

  7. if during the course of the Tasks, the Materials are not or cease to be available from Infusion Solutions third party suppliers, then Infusion Solutions reserves the right to provide alternative Materials (or components of the Materials); or

  8. where additional Tasks are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitation to accessing the site, obscured site/building defects which require remedial Task, health hazards and safety considerations (such as the discovery of asbestos), prerequisite Task by any third party not being completed, changes to the scope of the Tasks, which are only discovered on commencement of the Tasks; or

  9. in the event of increases to Infusion Solutions in the cost of labour, taxies, levies or materials which are beyond Infusion Solutions control.

  10. Variations will be charged for on the basis of Infusion Solutions quotation, and will be detailed in writing, and shown as variations on Infusion Solutions invoice. The Customer shall be required to respond to any variation submitted by Infusion Solutions within ten (10) working days. Failure to do so will entitle Infusion Solutions 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.

  11. At Infusion Solutions sole discretion a non-refundable deposit may be required.

  12. Time for payment for the Tasks being of the essence, the Price will be payable by the Customer on the date/s determined by Infusion Solutions, which may be:

  13. on completion of the Tasks; or

  14. by way of progress payments in accordance with Infusion Solutions specified progress payment schedule.or

  15. the date specified on any invoice or other form as being the date for payment; or

  16. failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by Infusion Solutions.

  17. Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a 1.5% surcharge may apply per transaction), or by any other method as agreed to between the Customer and Infusion Solutions.

  18. Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Infusion Solutions an amount equal to any GST Infusion Solutions must pay for any supply by Infusion Solutions under this or any other contract for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price.

 

Provision of the Tasks

  1. Subject to clause 7.2 it is Infusion Solutions responsibility to ensure that the Tasks start as soon as it is reasonably possible.

  2. The Tasks’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Infusion Solutions claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Infusion Solutions control, including but not limited to any failure by the Customer to:

  3. make a selection; or

  4. have the site ready for the Tasks; or

  5. notify Infusion Solutions that the site is ready.

  6. At Infusion Solutions sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

  7. Infusion Solutions may deliver the Tasks by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

  8. Any time specified by Infusion Solutions for delivery of the Tasks is an estimate only and Infusion Solutions will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Tasks to be supplied at the time and place as was arranged between both parties. In the event that Infusion Solutions is unable to supply the Tasks as agreed solely due to any action or inaction of the Customer, then Infusion Solutions shall be entitled to charge a reasonable fee for re-supplying the Tasks at a later time and date, and/or for storage of the Materials.

 

Risk

  1. If Infusion Solutions retains ownership of the Materials under clause 14 then:

  2. where Infusion Solutions is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by Infusion Solutions or Infusion Solutions nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).

  3. where Infusion Solutions is to both supply and install Materials then Infusion Solutions shall maintain a contract Tasks insurance policy until the Tasks are completed. Upon completion of the Tasks all risk for the Tasks shall immediately pass to the Customer.

  4. Notwithstanding the provisions of clause 8.1 if the Customer specifically requests Infusion Solutions to leave Materials outside Infusion Solutions premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.

  5. The Customer warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roof and/or crawl spaces), Infusion Solutions or Infusion Solutions employees reasonably forms the opinion that the Customer’s premises is not safe for the installation of Materials to proceed then Infusion Solutions shall be entitled to delay installation of the Materials (in accordance with clause 7.2) until Infusion Solutions is satisfied that it is safe for the installation to proceed.

  6. The Customer warrants that no other tradesmen interfere with any Tasks and/or Materials supplied under this contract. Infusion Solutions shall not be liable for any costs, damages or loss however arising from the Customer’s failure to comply with this clause.8.5Infusion Solutions shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, Infusion Solutions accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

 
Electrical Risk

  1. All Tasks will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling Tasks will comply with the Australian and New Zealand Wiring standards.

  2. Where the Customer has supplied materials for Infusion Solutions to complete the Tasks, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Infusion Solutions shall not be responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), however arising from the use of materials supplied by the Customer.

  3. The Customer acknowledges that Infusion Solutions is only responsible for Materials that are replaced/repaired by Infusion Solutions, and in the event that other parts/goods, subsequently fail, the Customer agrees to indemnify Infusion Solutions against any loss or damage to the Tasks, or caused by the goods, or any part thereof howsoever arising.

  4. Property Securities Register established by the PPSA or releasing any Materials charged thereby;

  5. not register a financing change statement in respect of a security interest without the prior written consent of Infusion Solutions;

  6. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

  7. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Infusion Solutions;

  8. immediately advise Infusion Solutions of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.

 

Customer’s Responsibilities

  1. The Customer shall ensure that Infusion Solutions has clear and free access to the Tasksite at all times to enable them to undertake the Tasks. Infusion Solutions shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concrete or paved or grassed areas) unless due to the negligence of Infusion Solutions.

  2. The Customer agrees to be present at the Tasksite when and as reasonably requested by Infusion Solutions and its employees and/or agents.

  3. The Customer acknowledges that in the event asbestos or any other toxic substances are discovered at the Tasksite that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify Infusion Solutions against any costs incurred by Infusion Solutions as a consequence of such discovery. Under no circumstances will Infusion Solutions handle removal of asbestos products.

  4. The Customer acknowledges that it is their responsibility to ensure that all Materials, plant or equipment which Infusion Solutions is required to install (or to connect any of its Materials to) are of the correct type, size, rating, standard, quality, colour and finish, conform with all relevant Australian standards and local statutory requirements, and are as specified in the specifications, drawings and plans upon which Infusion Solutions based the quotation on and therefore, the Customer agrees to indemnify Infusion Solutions against any costs incurred by Infusion Solutions in rectifying such errors if required.

  5. Infusion Solutions is not responsible for the removal of rubbish from or clean-up of the building/construction site/s.This is the responsibility of the Customer or the Customer’s agent.

 

Underground Locations or Hidden Services

  1. Prior to Infusion Solutions commencing any Task the Customer must advise Infusion Solutions of the precise location of all underground or hidden services on the site and clearly mark the same (including but not limited to any services in wall cavities). The mains/services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

  2. Whilst Infusion Solutions will take all care to avoid damage to any services the Customer agrees to indemnify Infusion Solutions in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1.

 

Compliance with Laws

  1. The Customer and Infusion Solutions shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Tasks, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

  2. The Customer shall obtain (at the expense of the Customer) all licenses, engineers reports, and approvals that may be required for the Tasks.

 

Title

  1. Infusion Solutions and the Customer agree that ownership of the Materials shall not pass until:

  2. the Customer has paid Infusion Solutions all amounts owing to Infusion Solutions; and

  3. the Customer has met all of its other obligations to Infusion Solutions.

  4. Receipt by Infusion Solutions 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.

  5. It is further agreed that until ownership of the Materials passes to the Customer in accordance with clause 12.1:

  6. the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Infusion Solutions on request.

  7. the Customer holds the benefit of the Customer’s insurance of the Materials on trust for Infusion Solutions and must pay to Infusion Solutions the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.

  8. the production of these terms and conditions by Infusion Solutions shall be sufficient evidence of Infusion Solutions rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Infusion Solutions to make further enquiries

  9. the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for Infusion Solutions and must pay or deliver the proceeds to Infusion Solutions on demand.

  10. the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Infusion Solutions and must sell, dispose of or return the resulting product to Infusion Solutions as it so directs.

  11. unless the Materials have become fixtures the Customer irrevocably authorises Infusion Solutions to enter any premises where Infusion Solutions believes the Materials are kept and recover possession of the Materials.

  12. Infusion Solutions may recover possession of any Materials in transit whether or not delivery has occurred.

  13. the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Infusion Solutions.

  14. Infusion Solutions may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.

 

Personal Property Securities Act 2009 (“PPSA”)

  1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

  2. Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials and/or collateral (account) –being a monetary obligation of the Customer to Infusion Solutions for Tasks –that have previously been supplied and that will be supplied in the future by Infusion Solutions to the Customer.

  3. The Customer undertakes to: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 Infusion Solutions may reasonably require to:

  4. register any other document required to be registered by the PPSA; or

  5. correct a defect in a statement referred to in clause 14.3(a)(i) or 14.3(a)(ii);

  6. indemnify, and upon demand reimburse, Infusion Solutions for all expenses incurred in registering a financing statement or financing change statement on the Personal

  7. Infusion Solutions and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

  8. The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

  9. The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

  10. Unless otherwise agreed to in writing by Infusion Solutions, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

  11. The Customer shall unconditionally ratify any actions taken by Infusion Solutions under clauses 14.3 to 14.5.

  12. Subject to any express provisions to the contrary (including those contained in this clause 14) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

Security and Charge

  1. In consideration of Infusion Solutions agreeing to supply the Materials, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

  2. 16.2The Customer indemnifies Infusion Solutions from and against all Infusion Solutions costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Infusion Solutions rights under this clause.16.3The Customer irrevocably appoints Infusion Solutions and each director of Infusion Solutions as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Customer’s behalf.

 

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

  1. 17.1The Customer must inspect all Materials on delivery (or the Tasks on completion) and must within seven (7) days of delivery notify Infusion Solutions in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Materials/Tasks as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Infusion Solutions to inspect the Materials or to review the Tasks provided.

  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).

  3. Infusion Solutions acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

  4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Infusion Solutions makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Tasks. Infusion Solutions liability in respect of these warranties is limited to the fullest extent permitted by law.

  5. If the Customer is a consumer within the meaning of the CCA, Infusion Solutions liability is limited to the extent permitted by section 64A of Schedule 2.17.

  6. If Infusion Solutions is required to replace any Materials under this clause or the CCA, but is unable to do so, Infusion Solutions may refund any money the Customer has paid for the Materials.

  7. If Infusion Solutions is required to rectify, re-supply, or pay the cost of re-supplying the Tasks under this clause or the CCA, but is unable to do so, then Infusion Solutions may refund any money the Customer has paid for the Tasks but only to the extent that such refund shall take into account the value of Tasks and Materials which have been provided to the Customer which were not defective.

  8. If the Customer is not a consumer within the meaning of the CCA, Infusion Solutions liability for any defect or damage in the Materials is:

  9. limited to the value of any express warranty or warranty card provided to the Customer by Infusion Solutions at Infusion Solutions sole discretion;

  10. limited to any warranty to which Infusion Solutions is entitled, if Infusion Solutions did not manufacture the Materials;

  11. otherwise negated absolutely.

  12. Subject to this clause 16, returns will only be accepted provided that:

  13. the Customer has complied with the provisions of clause 16.1; and

  14. Infusion Solutions has agreed that the Materials are defective; and

  15. the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and

  16. the Materials are returned in as close a condition to that in which they were delivered as is possible.

  17. Notwithstanding clauses 16.1 to 16.9 but subject to the CCA, Infusion Solutions shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

  18. the Customer failing to properly maintain or store any Materials;

  19. the Customer using the Materials for any purpose other than that for which they were designed;

  20. the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

  21. interference with the Tasks by the Customer or any third party without Infusion Solutions prior approval.

  22. the Customer failing to follow any instructions or guidelines provided by Infusion Solutions.

  23. fair wear and tear, any accident, or act of God.

  24. Notwithstanding anything contained in this clause if Infusion Solutions is required by a law to accept a return then Infusion Solutions will only accept a return on the conditions imposed by that law.

 

Pipe Freezing

  1. Infusion Solution shall not be held liable for, any damage arising out of or in any way involving the activity of freezing water to conduct any pipe work where a stop valve is not available.

  2. Infusion solutions shall not personally conduct the activity of freezing water in any pipe work above 25mm in diameter.

 

Fire Hydrant System Testing

  1. Infusion Solution shall not be held liable for, any damage arising out of or in any way involving the activity of fire hydrant testing where the system may fail due to previous poor maintenance or conditions outside of Infusions control.

 

Intellectual Property

  1. Where Infusion Solutions has designed, drawn, written plans or a schedule of Tasks, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Infusion Solutions, and shall only be used by the Customer at Infusion Solutions discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Infusion Solutions.

  2. The Customer warrants that all designs, specifications or instructions given to Infusion Solutions will not cause Infusion Solutions to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Infusion Solutions against any action taken by a third party against Infusion Solutions in respect of any such infringement.

  3. The Customer agrees that Infusion Solutions may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Infusion Solutions has created for the Customer.

 

Default and Consequences of Default

  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 Infusion Solutions sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

  2. If the Customer owes Infusion Solutions any money the Customer shall indemnify Infusion Solutions from and against all costs and disbursements incurred by Infusion Solutions in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Infusion Solutions contract default fee, and bank dishonour fees).

  3. Further to any other rights or remedies Infusion Solutions may have under this contract, if a Customer has made payment to Infusion Solutions, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Infusion Solutions under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.

  4. Without prejudice to Infusion Solutions other remedies at law Infusion Solutions shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Infusion Solutions shall, whether or not due for payment, become immediately payable if:

  5. any money payable to Infusion Solutions becomes overdue, or in Infusion Solutions opinion the Customer will be unable to make a payment when it falls due;

  6. the Customer has exceeded any applicable credit limit provided by Infusion Solutions;

  7. the Customer becomes insolvent or bankrupt, 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

  8. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

 

Dispute Resolution

  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:

  2. referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

  3. Cancellation Without prejudice to any other remedies Infusion Solutions may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Infusion Solutions may suspend or terminate the supply of Tasks to the Customer. Infusion Solutions will not be liable to the Customer for any loss or damage the Customer suffers because Infusion Solutions has exercised its rights under this clause.

  4. Infusion Solutions may cancel any contract to which these terms and conditions apply or cancel delivery of Tasks at any time before the Tasks are commenced by giving written notice to the Customer. On giving such notice Infusion Solutions shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to Infusion Solutions for Tasks already performed. Infusion Solutions shall not be liable for any loss or damage whatsoever arising from such cancellation.

  5. In the event that the Customer cancels the delivery of Tasks the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Infusion Solutions as a direct result of the cancellation (including, but not limited to, any loss of profits).

  6. Cancellation of orders for products made to the Customer’s specifications, or for non-stock list items, will definitely not be accepted once production has commenced, or an order has been placed.

 

Privacy Act 1988

  1. The Customer agrees for Infusion Solutions 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 Customer in relation to credit provided by Infusion Solutions.

  2. The Customer agrees that Infusion Solutions may exchange information about the Customer with those credit providers and with related body corporates for the

  3. to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

  4. to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.

  5. The Customer consents to Infusion Solutions being given a consumer credit report to collect overdue payment on commercial credit.

  6. The Customer agrees that personal credit information provided may be used and retained by Infusion Solutions for the following purposes (and for other agreed purposes or required by):

  7. the provision of Tasks; and/or

  8. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Tasks; and/or

  9. Infusion Solutions may give information about the Customer to a CRB for the following purposes:

  10. to obtain a consumer credit report;(b)allow the CRB to create or maintain a credit information file about the Customer including credit history.

  11. The information given to the CRB may include:

  12. personal information as outlined in 20.1 above;

  13. name of the credit provider and that Infusion Solutions is a current credit provider to the Customer; whether the credit provider is a licensee; type of consumer credit;

  14. details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);

  15. 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 Customer no longer has any overdue accounts and Infusion Solutions has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);

  16. information that, in the opinion of Infusion Solutions, the Customer has committed a serious credit infringement;

  17. advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

  18. The Customer shall have the right to request (by e-mail) from Infusion Solutions:

  19. a copy of the information about the Customer retained by Infusion Solutions and the right to request that Infusion Solutions correct any incorrect information; and

  20. that Infusion Solutions does not disclose any personal information about the Customer for the purpose of direct marketing.

  21. The Customer can make a privacy complaint by contacting Infusion Solutions via e-mail. Infusion Solutions 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.

 

Service of Notices

  1. Any written notice given under this contract shall be deemed to have been given and received:

  2. by handing the notice to the other party, in person;

  3. by leaving it at the address of the other party as stated in this contract;

  4. by sending it by registered post to the address of the other party as stated in this contract;

  5. 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;

  6. if sent by email to the other party’s last known email address.

  7. 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.

 

Trusts

  1. If the Customer at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Infusion Solutions may have notice of the Trust, the Customer covenants with Infusion Solutions as follows:

  2. the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;

  3. the Customer has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.

  4. The Customer will not without consent in writing of Infusion Solutions (Infusion Solutions will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

  5. the removal, replacement or retirement of the Customer as trustee of the Trust;

  6. any alteration to or variation of the terms of the Trust;

  7. any advancement or distribution of capital of the Trust; or

  8. any resettlement of the trust property.

 

General

  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.

  2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which Infusion Solutions has its principal place of business, and are subject to the jurisdiction of the Courts in Queensland.

  3. Subject to clause 14 Infusion Solutions shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Infusion Solutions of these terms and conditions (alternatively Infusion Solutions liability shall be limited to damages which under no circumstances shall exceed the Price of the Tasks).

  4. Infusion Solutions may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.

  5. The Customer cannot licence or assign without the written approval of Infusion Solutions.

  6. Infusion Solutions may elect to subcontract out any part of the Tasks but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Infusion Solutions sub-contractors without the authority of Infusion Solutions.

  7. The Customer agrees that Infusion Solutions may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Infusion Solutions to provide Tasks to the Customer.

  8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

  9. 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.

GENERAL TERMS AND CONDITIONS