1.1 “FIGTEKFABRICATION”, who, by entering into the contract, agree to supply the Goods to the Client, subject to these terms and conditions.
1.2 “Client” means the person/s requesting FIGTEKFABRICATION to supply the Goods, as specified in any quotation, order, invoice or other document, and where more than one person has entered into the contract, they shall be jointly and severally liable under the contract (including for all payments of the Price).
1.3 “Goods” means all Goods and/or Services provided by FIGTEKFABRICATION to the Client, at the Client’s request, from time to time (including any apparel, designs, drawings or materials supplied, consumed, created or deposited incidentally by FIGTEKFABRICATION in the course of supplying to the Client any Goods (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the price payable for the Goods as agreed between FIGTEKFABRICATION and the Client in accordance with clause 5 of the contract.
2.1 In these terms and conditions, unless the context otherwise requires:
(a) the singular includes the plural, and vice versa; and
(b) a reference to a clause is a reference to a clause of these terms and conditions; and
(c) a reference to a party to these terms and conditions, or any other document or agreement, includes that party’s executors, administrators, successors and permitted assigns, and any person acting on behalf of, and with the authority of, that party; and
(d) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
(e) a reference to a period of time (including, but not limited to, a year, quarter, month and day) is to a calendar period; and
(f) headings are for convenient reference only, and do not affect interpretation; and
2.2 If the day upon which any act, matter or thing is to be done under the contract is not a business day, that act, matter or thing:
(a) if it involves payment other than payment which is due on demand, must be done on the preceding business day; and
(b) in all other cases, may be done on the next business day.
3.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts FIGTEKFABRICATION’s quotation (either orally or in writing) for, the supply of Goods.
3.2 These terms and conditions may only be amended with FIGTEKFABRICATION’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and FIGTEKFABRICATION.
3.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.4 The Client acknowledges that:
(a) any advice, recommendation, information, assistance or service provided by FIGTEKFABRICATION in relation to Goods supplied is given in good faith, is based on FIGTEKFABRICATION’s own knowledge and experience and shall be accepted without liability on the part of FIGTEKFABRICATION, and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods; and
(b) where colour matching is required, the Client agrees to supply information and samples regarding the correct colour.
Change in Control
4.1 The Client shall give FIGTEKFABRICATION not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by FIGTEKFABRICATION as a result of the Client’s failure to comply with this clause.
Price and Payment
5.1 At FIGTEKFABRICATION’s sole discretion the Price shall be either:
(a) as indicated on any invoice/s provided by FIGTEKFABRICATION to the Client; or
(b) the Price as at the date of Delivery, according to FIGTEKFABRICATION’s current price list; or
(c) FIGTEKFABRICATION’s quoted price (subject to clause 6) which will be valid for the period stated in FIGTEKFABRICATION’s quotation or otherwise for a period of thirty (30) days. FIGTEKFABRICATION need not commence the Client’s order until the quotation has been accepted by the Client.
5.2 At FIGTEKFABRICATION’s sole discretion, a non-refundable deposit may be required.
5.3 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by FIGTEKFABRICATION, which may be:
(a) before Delivery; or
(b) by way of instalments in accordance with FIGTEKFABRICATION’s payment schedule. FIGTEKFABRICATION may, in the event that FIGTEKFABRICATION is of the view that completing the Client’s order will take more than a month, at any time before the order is completed, issue one (1) or more invoices for the proportion of the amount of the Goods (the amount to be at FIGTEKFABRICATION’s discretion) and require that portion to be paid in advance of any further Goods supplied. If the order is suspended for more than thirty (30) days at the request of the Client, or as a result of something for which the Client is responsible, FIGTEKFABRICATION may issue an invoice for a particular amount (to be specified by FIGTEKFABRICATION) for Goods already supplied, and for other costs incurred by FIGTEKFABRICATION (such as storage costs, etc.); or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice furnished to the Client by FIGTEKFABRICATION.
5.4 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of two percent (2%) for any Visa or MasterCard transaction or of three and a half percent (3.5%) for any Amex transaction), or by any other method as agreed to between the Client and FIGTEKFABRICATION.
5.5 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to FIGTEKFABRICATION an amount equal to any GST FIGTEKFABRICATION must pay for any supply of Goods by FIGTEKFABRICATION under the contract, or any other agreement. 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.
6.1 FIGTEKFABRICATION reserves the right to change the Price in the event of a variation to the quoted Goods, including:
(a) any preliminary work ,and work carried out experimentally, speculatively, or otherwise at the Client’s request; and
(b) any extra work or cost caused by any variation by the Client of its original instructions, or by the those instructions being, in FIGTEKFABRICATION’s opinion, poorly prepared, or by the Client’s requirements being different from those originally submitted or described; and
(c) any tabulated work and/or foreign language to be incorporated in the Goods, but not contained in the Client’s instructions originally submitted; and
(d) additional work required to be done as a result of author’s corrections, including repagination or reformatting; or
(e) work required to be done urgently, including any overtime costs; or
(f) handling or storing Property supplied for the purposes of supplying the Goods; or
(g) any changes or corrections to any plates, film, bromides, artwork any document (including computer files) supplied by the Client, and deemed necessary by FIGTEKFABRICATION to ensure correctly completed Goods; and
(h) when style, type or layout is left to FIGTEKFABRICATION’s judgement, and the Client makes further alterations; and
(i) any overset matter (being matter produced on the Client’s instructions, but not used for the supply of Goods as was intended); and
(j) where the performance of the contract with the Client requires FIGTEKFABRICATION to obtain products and/or services from a third party:
(i) the contract between FIGTEKFABRICATION and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to FIGTEKFABRICATION, and
(ii) the Client shall be liable for the cost in full including FIGTEKFABRICATION’s margin of such products and/or services; and
(iii) FIGTEKFABRICATION shall not be liable for any breach of these terms and conditions if that breach is a result of, or is connected with, the supply by any third party of such products and/or services; and
(iv) FIGTEKFABRICATION acquires such products and/or services as agent for the Client and not as principal, and FIGTEKFABRICATION shall have no liability to the Client in relation to the supply of those products and/or services. Any claim by the Client in relation to the products and/or servuces must be made directly against the third party; and
(v) title to any such products and/or service obtained from any third party and incorporated in the Goods passes to FIGTEKFABRICATION at the time of incorporation.
(k) any costs and charges of Delivery, or other charges, fees or disbursements referred to in these terms and conditions and not specified in this clause.
7.1 Whilst every care is taken by FIGTEKFABRICATION to carry out the instructions of the Client, if FIGTEKFABRICATION submits to the Client a proof of the Goods, FIGTEKFABRICATION will not be responsible for any errors which appeared in the proof which were not corrected by the Client before the Goods are produced.
8.1 Any time specified by FIGTEKFABRICATION for Delivery is an estimate only and FIGTEKFABRICATION will not be liable for any loss or damage incurred by the Client as a result of delayed Delivery. However both parties agree that they shall make every endeavour to enable the Goods to be supplied at the time and place as was arranged between both parties. In the event that FIGTEKFABRICATION is unable to supply the Goods as agreed solely due to any action or inaction of the Client then FIGTEKFABRICATION shall be entitled to charge a reasonable fee for redelivery, detention and/or storage.
8.2 Delivery of the Goods (“Delivery”) is taken to occur at the time that FIGTEKFABRICATION:
(a) notifies the Client that the Goods are ready to be collected by the Client (or the Client’s nominated carrier) at FIGTEKFABRICATION’s address; or
(b) (or FIGTEKFABRICATION’s nominated carrier) delivers the Goods to the Client’s nominated address, even if the Client is not present at the address, and the Client shall bear all freight costs and charges of Delivery.
8.3 FIGTEKFABRICATION 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.
8.4 Whilst every endeavour will be made to deliver the correct quantity ordered, the Client acknowledges that the difficulty of producing exact quantities, estimates and/or orders are conditional upon a margin of ten percent (10%) being allowed for shortages or over-runs (owing to human and/or machine/computer error), which will be charged for, or deducted from, the Price on a pro rata basis to reflect the actual quantity of Goods produced.
8.5 FIGTEKFABRICATION will not be responsible for storing any data on disks, tapes, compact disks or other media when the Goods have been delivered. If FIGTEKFABRICATION agrees to store such data, FIGTEKFABRICATION may charge the Client for doing so in accordance with clause 6.
Fabrics and Printing
9.1 The Client acknowledges:
(a) artwork for process printing on t-shirts are different to that of paper printing; FIGTEKFABRICATION takes no responsibility for supplied artwork when resulting print does not meet the Client’s expectations. Screens and sampling costs will be charged in accordance with clause 6.
(b) sublimation is a process whereby the fabric dye migrates directly with the printed ink, causing the print to become faded or dull. It is recommended that fabrics be colour tested or sampling to be done before production commences. This usually occurs with printing on polycottons, synthetics and poly-microns, etc. FIGTEKFABRICATION will not accept any claim for defects resulting from sublimation; and
(c) whilst FIGTEKFABRICATION will take all due care, no responsibility is taken for poor fabrics which burn/shrink because they are unable to withstand flash curing. It is the Client’s responsibility to ensure that all garments/fabrics supplied are of sufficient quality and strength; and
(d) stock not in FIGTEKFABRICATION’s warehouse at least seventy-two (72) hours prior to the agreed date of Delivery will be subject to rescheduling without notice. It is the Client’s responsibility to ensure that all stock has been organised and delivered to FIGTEKFABRICATION’s premises in a timely manner; and
(e) if the stock supplied by the Client show discrepancies with the final size breakdown/count/colour or product supplied, etc., FIGTEKFABRICATION will place the Client’s order on hold until the discrepancies have been rectified.
10.1 Irrespective of whether FIGTEKFABRICATION retains ownership of any Goods, all risk for such items shall pass to the Client on Delivery, and shall remain with the Client until such time as FIGTEKFABRICATION may repossess the Goods in accordance with clause 13.3(f). The Client must insure all Goods on, or before, Delivery. In the event the Client rejects the Goods in accordance with clause 16, risk reverts to FIGTEKFABRICATION at the time the Client notifies FIGTEKFABRICATION that the Goods are rejected.
10.2 FIGTEKFABRICATION reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Goods as a result of the Client’s failure to insure in accordance with clause 10.1.
10.3 If the Client requests FIGTEKFABRICATION to leave Goods outside FIGTEKFABRICATION’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.
Material or Equipment Supplied by Client
11.1 Where the Client supplies material or equipment (“Property”) to FIGTEKFABRICATION for the supply of the Goods:
(a) the Property will be held by FIGTEKFABRICATION at the Client’s risk, and:
(i) FIGTEKFABRICATION shall not be liable to the Client for loss, howsoever caused, of any data stored on disks, tapes, compact disks or other media supplied by the Client to FIGTEKFABRICATION; and
(ii) subject to sub-clause (i), FIGTEKFABRICATION will not be liable for the damage, loss or destruction of any Property of the Client in FIGTEKFABRICATION’s possession, unless the loss or damage is due to the failure of FIGTEKFABRICATION to exercise due care and still in handling or storing the Property.
(b) adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received, unless requested by the Client in writing, and this shall be charged as an extra in accordance with clause 6.1; and
(c) FIGTEKFABRICATION accepts no responsibility for imperfect work caused by defects in or unsuitability of such Property; and
(d) title to any Property incorporated in the Goods passes to FIGTEKFABRICATION at the time of incorporation; and
(e) FIGTEKFABRICATION has no obligation to insure any Property in FIGTEKFABRICATION’s possession. The Client must pay the cost of any insurance arranged by FIGTEKFABRICATION as the request of the Client.
11.2 In the case of Property left with FIGTEKFABRICATION without specific instructions, FIGTEKFABRICATION shall be free to dispose of them (including in accordance with clause 21) on expiry of twelve (12) months after receiving them, and to accept and retain the proceeds, if any, to cover FIGTEKFABRICATION’s own costs in holding and handling them.
12.1 If the contract relates to more than one (1) issue of a periodical:
(a) each issue will, for the purposes of these terms and conditions, be considered to be one (1) order; and
(b) subject to clause 18.4, a party may not terminate a contract to which these terms and conditions apply unless:
(i) in the case of periodicals published weekly or more frequently, that party has given four (4) weeks’ notice of that party’s intention to terminate the contract; or
(ii) in the case of periodicals published fortnightly or more frequently (but less frequently that weekly), that party has given right (8) weeks’ notice of that party’s intention to terminate the contract; or
(iii) in the case of periodicals published less frequently than fortnightly, that party has given thirteen (13) weeks’ notice of that party’s intention to terminate the contract.
13.1 FIGTEKFABRICATION and the Client agree that the Client’s obligations for the Services shall not cease, and ownership of the Goods shall not pass, until:
(a) the Client has paid FIGTEKFABRICATION all amounts owing to FIGTEKFABRICATION; and
(b) the Client has met all other obligations due by the Client to FIGTEKFABRICATION in respect of all contracts between FIGTEKFABRICATION and the Client.
13.2 Receipt by FIGTEKFABRICATION 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 and until then FIGTEKFABRICATION’s ownership or rights in respect of the Goods, and this contract, shall continue.
13.3 It is further agreed that, until ownership passes to the Client in accordance with clause 13.1:
(a) the Client is only a bailee of the Goods and:
(i) must return the Goods to FIGTEKFABRICATION immediately upon request by FIGTEKFABRICATION; and
(ii) must store the Goods so that they are clearly identifiable as the property of FIGTEKFABRICATION.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for FIGTEKFABRICATION and must pay to FIGTEKFABRICATION the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed; and
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of sale of the Goods on trust for FIGTEKFABRICATION and must pay or deliver the proceeds to FIGTEKFABRICATION on demand; and
(d) the Client should not convert or process or use the Goods, or intermix them with other goods, but if the Client does so then the Client shall be liable for the full payment to FIGTEKFABRICATION of the Price; and
(e) 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 FIGTEKFABRICATION; and
(f) the Client irrevocably authorises FIGTEKFABRICATION to enter any premises where FIGTEKFABRICATION believes the Goods are kept and recover possession of the Goods.
13.4 All disks, tapes, compact disks or other media (other than Property supplied by the Client) used by FIGTEKFABRICATION to store data for the purposes of supplying the Goods are the property of FIGTEKFABRICATION. The Client cannot require FIGTEKFABRICATION to supply to the Client any data stored. In the event that FIGTEKFABRICATION does supply any data so stored or created, FIGTEKFABRICATION may charge for supplying such data to the Client in accordance with clause 6.
Security and Charge
15.1 In consideration of FIGTEKFABRICATION 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).
15.2 The Client indemnifies FIGTEKFABRICATION from and against all FIGTEKFABRICATION’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising FIGTEKFABRICATION’s rights under this clause.
15.3 The Client irrevocably appoints FIGTEKFABRICATION and each director of FIGTEKFABRICATION as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and the Competition and Consumer Act
16.1 The Client must, on Delivery, inspect the Goods, and must within seven (7) days of such time notify FIGTEKFABRICATION in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quotation. 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 FIGTEKFABRICATION to inspect the Goods.
16.2 Under applicable State, Territory and Commonwealth Law (including, without limitation certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the may be implied into these terms and conditions (“Non-Excluded Guarantees”).
16.3 FIGTEKFABRICATION acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, FIGTEKFABRICATION makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Goods. FIGTEKFABRICATION’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Client is a consumer within the meaning of the ,, FIGTEKFABRICATION’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If FIGTEKFABRICATION is required to rectify, re-supply, or pay the cost of re-supplying the Goods under this clause or the ,, but is unable to do so, then FIGTEKFABRICATION may refund any money the Client has paid for the Goods, but only to the extent that such refund shall take into account the value of Goods which have been supplied to the Client which were not defective.
16.7 If the Client is not a consumer within the meaning of the ,, FIGTEKFABRICATION’s liability for any defective Goods is:
(a) limited to the value of any express warranty, or warranty card, provided to the Client by FIGTEKFABRICATION at FIGTEKFABRICATION’s sole discretion; or
(b) limited to any warranty to which FIGTEKFABRICATION is entitled, if FIGTEKFABRICATION did not manufacture the Goods; or
(c) otherwise negated absolutely.
16.8 Subject to this clause 16 (and in particular clause 16.9), the return of defective Goods will only be accepted provided that:
(a) the Goods exhibit a variation from the final proof approved by the Client, including but not limited to, colour; and
(b) the Client has complied with the provisions of clause 16.1; and
(c) FIGTEKFABRICATION has agreed that the Goods are defective; and
(d) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(e) the Goods are returned in as close a condition to that in which they were delivered as is possible.
16.9 Notwithstanding clauses 16.1 to 16.8, but subject to the ,, FIGTEKFABRICATION shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to correct any error in proof (as per clause 7.1); or
(b) the Client failing to properly store the Goods; or
(c) the Client using the Goods for any purpose other than that for which they were designed; or
(d) the Client continuing to use the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; or
(e) interference with the Goods by the Client or any third party without FIGTEKFABRICATION’s prior approval; or
(f) the Client failing to follow any instructions or guidelines provided by FIGTEKFABRICATION; or
(g) fair wear and tear (including the fading of inks), any accident, or act of God.
16.10 FIGTEKFABRICATION may, in its absolute discretion, accept non-defective Goods for return, in which case FIGTEKFABRICATION may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods, plus any freight costs. Other than in accordance with this clause 16, non-stocklist items, or Goods made to the Client’s specifications, are under no circumstances acceptable for credit or return.
16.11 Notwithstanding anything contained in this clause if FIGTEKFABRICATION is required by a law to accept a return, then FIGTEKFABRICATION will only accept a return on the conditions imposed by that law.
Intellectual Property and Confidentiality
17.1 Unless agreed otherwise between FIGTEKFABRICATION and the Client, drawings, sketches, painting, photographs, designs, typesetting, dummies, models, negatives, positives, blocks, engravings, stencils, dies, plates or cylinders, electros, stereos, discs, tapes, compact discs, or other media or data and other material produced by FIGTEKFABRICATION in the course of, or in preparation of, supplying the Goods (whether or not in fact used for the purposes of supplying the Goods) are the property of FIGTEKFABRICATION.
17.2 Intellectual property rights in all artistic and literary work authored by FIGTEKFABRICATION shall be the property of FIGTEKFABRICATION. The Client:
(a) warrants that the Client has copyright in, or a license to authorise FIGTEKFABRICATION to reproduce, all artistic and literary work supplied by the Client to FIGTEKFABRICATION for the purposes of supplying the Goods, and the Client hereby expressly authorises FIGTEKFABRICATION to reproduce all and any of such work for the purposes aforesaid; and
(b) hereby indemnifies and agrees to keep indemnified FIGTEKFABRICATION against all liability, losses or expenses incurred by FIGTEKFABRICATION in relation to, or in any directly or indirectly connected with any breach of copyright or of any right in relation to copyright in such literary or artistic work supplied as aforesaid; and
(c) the Client is hereby granted a non-exclusive license to use the copyright in any literary and/or artistic work authored by FIGTEKFABRICATION for the purposes of the supply of the Goods, however the exercise of such license shall be conditional upon FIGTEKFABRICATION having received all monies due to FIGTEKFABRICATION under these terms and conditions.
17.3 The Client agrees that FIGTEKFABRICATION may (at no cost) use for the purposes of marketing or entry into any competition, any Goods which FIGTEKFABRICATION has created for the Client.
17.4 The Client must keep confidential, and not use, any ideas communicated by FIGTEKFABRICATION to the Client without FIGTEKFABRICATION’s written consent.
Default and Consequences of Default
18.1 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 FIGTEKFABRICATION’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes FIGTEKFABRICATION any money the Client shall indemnify FIGTEKFABRICATION from and against all costs and disbursements incurred by FIGTEKFABRICATION in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, FIGTEKFABRICATION’s contract default fee, and bank dishonour fees).
18.3 Further to any other rights or remedies FIGTEKFABRICATION may have under the contract, if the Client has made payment to FIGTEKFABRICATION by credit card, 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 FIGTEKFABRICATION under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under the contract.
18.4 Without prejudice to any other remedies FIGTEKFABRICATION may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions FIGTEKFABRICATION may suspend or terminate the supply of Goods to the Client. FIGTEKFABRICATION will not be liable to the Client for any loss or damage the Client suffers because FIGTEKFABRICATION has exercised its rights under this clause.
18.5 Without prejudice to FIGTEKFABRICATION’s other remedies at law FIGTEKFABRICATION shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to FIGTEKFABRICATION shall, whether or not due for payment, become immediately payable if:
(a) any money payable to FIGTEKFABRICATION becomes overdue, or in FIGTEKFABRICATION’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
19.1 FIGTEKFABRICATION may cancel any contract to which these terms and conditions apply, or cancel Delivery at any time before the production of the Goods are delivered, by giving written notice to the Client. On giving such notice FIGTEKFABRICATION shall repay to the Client any money paid by the Client for the Goods, less any amounts owing the FIGTEKFABRICATION for Services performed up to that date. FIGTEKFABRICATION shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.2 In the event that the Client cancels the contract, or Delivery, the Client shall be liable for any and all loss incurred (whether direct or indirect) by FIGTEKFABRICATION as a direct result of the cancellation (including, but not limited to, any loss of profits). However, 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.
Privacy Act 1988
20.1 The Client agrees for FIGTEKFABRICATION 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 FIGTEKFABRICATION.
20.2 The Client agrees that FIGTEKFABRICATION may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
20.3 The Client consents to FIGTEKFABRICATION being given a consumer credit report to collect overdue payment on commercial credit.
20.4 The Client agrees that personal credit information provided may be used and retained by FIGTEKFABRICATION for the following purposes (and for other agreed purposes or required by):
(a) the supply of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the supply of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
20.5 FIGTEKFABRICATION may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
20.6 The information given to the CRB may include:
(a) personal information as outlined in 20.1 above;
(b) name of the credit provider and that FIGTEKFABRICATION is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and FIGTEKFABRICATION has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of FIGTEKFABRICATION, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
20.7 The Client shall have the right to request (by e-mail) from FIGTEKFABRICATION:
(a) a copy of the information about the Client retained by FIGTEKFABRICATION and the right to request that FIGTEKFABRICATION correct any incorrect information; and
(b) that FIGTEKFABRICATION does not disclose any personal information about the Client for the purpose of direct marketing.
20.8 FIGTEKFABRICATION 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 the contract or is required to be maintained and/or stored in accordance with the law.
20.9 The Client can make a privacy complaint by contacting FIGTEKFABRICATION via e-mail. FIGTEKFABRICATION 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.
21.1 Where the Client has left any Property with FIGTEKFABRICATION for the supply of the Goods, and FIGTEKFABRICATION has not received or been tendered the whole of any amounts owing to it by the Client, FIGTEKFABRICATION shall have, until all amounts owing to FIGTEKFABRICATION are paid:
(a) a lien on the Property; and
(b) the right to retain or sell the Property, after providing fourteen (14) days’ notice to the Client, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
21.2 In the event that any of the Client’s Property held by FIGTEKFABRICATION as aforesaid enjoys copyright protection in favour of the Client, the Client hereby grants FIGTEKFABRICATION a licence to exercise the rights conferred on FIGTEKFABRICATION under this clause 21.
21.3 The lien of FIGTEKFABRICATION shall continue despite the commencement of proceedings, or judgment for any moneys owing to FIGTEKFABRICATION having been obtained against the Client.
22.1 The failure by FIGTEKFABRICATION to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect FIGTEKFABRICATION’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.
22.2 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 FIGTEKFABRICATION has its principal place of business, and are subject to the jurisdiction of the Sydney courts in that state.
22.3 Subject to clause 16, FIGTEKFABRICATION shall be under no liability whatsoever to the Client in contract, tort (including, but not limited to, negligence or breach of statutory duty or any failure by FIGTEKFABRICATION to deliver, or any delay in delivering, the Goods) or otherwise to compensate the Client for any indirect and/or consequential loss and/or expense (including loss of profit, revenue, business, contracts or anticipated savings) suffered by the Client, whether arising from a claim by a third party or otherwise. Alternatively, FIGTEKFABRICATION’s liability shall be limited to damages which under no circumstances shall exceed the Price.
22.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by FIGTEKFABRICATION nor to withhold payment of any invoice because part of that invoice is in dispute.
22.5 FIGTEKFABRICATION may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
22.6 The Client agrees that FIGTEKFABRICATION may amend these terms and conditions at any time. If FIGTEKFABRICATION makes a change to these terms and conditions, then that change will take effect from the date on which FIGTEKFABRICATION notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for FIGTEKFABRICATION to supply Goods to the Client.
22.7 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.
22.8 The Client warrants that it has the power to enter into the contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that the contract creates binding and valid legal obligations on it.