ATR STANDARD TERMS AND CONDITIONS
These are the standard terms and conditions for Communications, Security & Electrical and apply to all contracts and all work undertaken by ATR for its clients.
ATR Communications – Terms & Conditions of Trade
1.1 “ATR” means ATR Communications Pty Ltd ATF ATR Communications Unit Trust T/A ATR Communications, its successors and assigns or any person acting on behalf of and with the authority of ATR Communications Pty Ltd ATF ATR Communications Unit Trust T/A ATR Communications.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting ATR to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Goods” means all Goods or Services supplied by ATR to the Client at the Client’s request from time to time (which includes any goods, hardware, files, information, printed or virtual material, data or software, whether supplied from a third party software development company or where custom developed or programmed for the Client) or Services (which includes any advice or recommendations, support and advocacy services, assessment and treatment planning, reporting, technical service and support, brand integration or strategies, analysis, training, and project management or service sourcing) (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between ATR and the Client in accordance with clause 5 below.
1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and ATR.
2.3 Any advice, recommendations, information, assistance or service provided by ATR in relation to Services provided is given in good faith, is based on information provided to ATR, and ATR’s own knowledge, and experience. Whilst 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 Services, human error is possible under these circumstances, and ATR shall make all effort to offer the best solution to the Client.
2.4 The Client acknowledges and accepts that 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, ATR reserves the right to alternate Goods and vary the Price as per clause 5.2, subject to prior confirmation and agreement of both parties. In all such cases ATR will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order on hold until such time as ATR and the Client agree to such changes. ATR shall not be liable to the Client for any loss or damage the Client suffers due to ATR exercising its rights under this clause.
2.5 If ATR has been requested by the Client to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.
2.6 The Client acknowledges and agree that where ATR has performed temporary repairs on the Goods that:
(a) ATR offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(b) ATR will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair of the Goods.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that ATR 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 ATR 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 ATR 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 ATR; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give ATR not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change in trustees, or business practice). The Client shall be liable for any loss incurred by ATR as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At ATR’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by ATR to the Client; or
(b) ATR’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 ATR 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 or specifications) is requested; or
(c) if during the course of the Services the Goods are not or cease to be available from ATR’s third party suppliers, then ATR reserve the right to provide alternate Goods; or
(d) where additional Services are required due to the discovery of hidden or unforeseen circumstances, (including but not limited to, poor weather conditions, obscured site defects which require remedial work, limitations to accessing the site and crawl spaces, availability of machinery, safety considerations, change of design, prerequisite work by any third party not being completed or hidden pipes or wiring in walls etc.) which are only discovered on commencement of the Services; or
(e) in the event of increases to ATR in the cost of labour or materials which are beyond ATR’s control.
5.3 Variations will be charged for on the basis of ATR’s quotation, and will be detailed in writing, and shown as variations on ATR’s invoice. The Client shall be required to respond to any variation submitted by ATR within ten (10) working days. Failure to do so will entitle ATR 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 ATR’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 Client on the date/s determined by ATR, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with ATR’s payment schedule;
(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 fourteen (14) days following the date of any invoice given to the Client by ATR.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and ATR.
5.7 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 ATR nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to ATR an amount equal to any GST ATR must pay for any supply by ATR under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at ATR’s address; or
(b) ATR (or ATR’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.2 It is expressly agreed that ATR shall be taken to have delivered the Goods in accordance with this contract if at that address ATR obtains from any person a signed delivery docket for the Goods.
6.3 Subject to clause 6.4 it is ATR’s responsibility to ensure that the Services start as soon as it is reasonably possible.
6.4 The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that ATR claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond ATR’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify ATR that the site is ready; or
(d) if the Client defaults in payment.
6.5 At ATR’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
6.6 ATR 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.
6.7 Any time specified by ATR for delivery of the Goods is an estimate only and ATR will not be liable for any loss or damage incurred by the Client 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 ATR is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then ATR shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, ATR is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and
conditions by ATR is sufficient evidence of ATR’s rights to receive the insurance proceeds without the need for any person dealing with ATR to make further enquiries.
7.3 If the Client requests ATR to leave Goods outside ATR’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.
7.4 The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods 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 Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access) that ATR, its employees or ATR’s reasonably form the opinion that the Client’s premises is not safe for the installation of Goods to proceed then ATR shall be entitled to delay installation of the Goods until ATR is satisfied that it is safe for the installation to proceed.
7.5 The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
7.6 ATR shall upon installation ensure that all Goods are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Client specifically requires the Goods to be installed in any way which goes against ATR’s recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to ATR. Accordingly, ATR offers no warranty in regards to the aforementioned.
7.7 All work 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, applicable Act, and/or Codes of Practice. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
7.8 The Client accepts that a test report is produced at the time of testing. Should the Client request a report of the tested item at a later date, this shall be an extra cost to the Client.
7.9 Failure by the Client to follow any recommended testing schedule of items shall be at the Client’s sole risk and ATR shall not be held responsible for an loss, damage or costs incurred by the Client should an item develop a fault past the recommended retest time indicated for that particular item.
7.10 In the event that the electrical wiring is required to be re-positioned at the request of any third-party contracted by the Client then the Client agrees to notify ATR immediately upon any proposed changes. The Client agrees to indemnify ATR against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 5.2.
7.11 Where the Client has supplied materials for ATR to complete the Services, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. ATR shall not be responsible for any defects in the Goods, any loss or damage to the Services (or any part thereof), howsoever arising from the use of materials supplied by the Client.
7.12 The Client acknowledges that ATR is only responsible for parts that are replaced/serviced by ATR and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third-party that subsequently fail and found to be the source of the failure, the Client agrees to indemnify ATR against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
7.13 ATR accepts no responsibility for any damage or performance related problems with any Goods where they have not been used and/or maintained in accordance with ATR’s and/or the manufacturers’ recommendations.
7.14 The Client acknowledges and accepts that where Krome and/or Molex cabling is installed that any expressed warranty will become null and void if during the installation the floor or roof space in which the cabling is installed has been disturbed by any other third party.
7.15 ATR shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, ATR accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.16 The Client acknowledges and agrees that:
(a) ATR does not guarantee the performance or transmission speed or quality of any data; and
(b) transmission of data may be unavailable from time to time due to scheduled maintenance and/or upgrades to websites, servers or networks by third parties; and
(c) there are inherent hazards in electronic distribution (including, but not limited to electrical interference, surges or spikes, high traffic volume affecting speed, etc) and as such ATR cannot warrant against delays or errors in transmitting data between the Client and any person or entity the Client conducts communications with including orders, and you agree that ATR will not be liable for any losses which the Client suffers as a result of delays or errors in transmitting orders or other communications and/or documents; and
(d) they are (for all purposes) solely responsible for the migration of all files and data (regardless of their format). ATR shall not be held responsible or liable for any loss, corruption, or deletion of files or data (including, but not limited to the software) resulting from illegal hacking or mislabelling or misfiling; and
(e) where CCTV systems, intrusion alarms and/or access control systems are installed to/at their premises that they are for monitoring and detection purposes only and ATR does not represent that the Goods will protect the Client against break and enter, theft and/or burglary and therefore accepts no liability if such is to occur after installation; and
(f) ATR cannot guarantee performance and/or the quality of any CCTV footage and/or discrepancies in camera motion detection and ATR shall not be liable for the failure of the equipment to be triggered to record due to the equipment being either under or over sensitive; and
(g) all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in ATR’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client 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 ATR; and
(h) while ATR may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that ATR has given these in good faith, and are estimates industry prescribed estimates under optimal operating conditions.
7.17 Where the Client updates or upgrades any software or hardware that may interface with ATR’s alarm or monitoring applications without advising ATR, the Client shall indemnify ATR of any loss or damage the Client or the Client’s property or possessions may incur as a result of the Client’s failure to advise ATR of any such update or upgrade that may affect the effectiveness of the alarm or monitoring.
8. Client’s Responsibilities
8.1 It is the Client’s responsibility to:
(a) provide all necessary services and amenities to enable ATR to provide the Services;
(b) make the premises available on the agreed date/s and time/s. If installation is interrupted by the failure of the Client to adhere to the schedule of Services agreed to between ATR and the Client, any additional costs will be invoiced to the Client as in accordance with clause 5.2; and
(c) ensure that ATR has clear and free access to the nominated address at all times to enable them to undertake the Services. ATR shall not be liable for any loss or damage to the address (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of ATR; and
(d) remove any furniture or personal items from the vicinity of the Services, and agrees that ATR shall not be liable for any damage caused to those items through the Clients failure to comply with this clause.
8.2 The Client acknowledges that they shall:
(a) not be entitled to withhold any payment due under this contract because of any delay in the connection of, or the supply of electricity to the Goods by an electrical distributor or any other third party; and
(b) be wholly responsible for the removal of rubbish from or clean-up of the worksite; and
(c) be responsible for ensuring that the Goods ordered are suitable for their intended use.
9. Hidden Services
9.1 Unless otherwise agreed in writing between the Client and ATR, it shall be the Client’s responsibility to advise the precise location of all hidden services on the site and clearly mark the same. The hidden mains & services the Client 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.
9.2 Whilst ATR will take all care to avoid damage to any services the Client agrees to indemnify ATR 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 and notified as per clause 9.1.
10. Compliance with Laws
10.1 The Client and ATR 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, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
10.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
11.1 ATR and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid ATR all amounts owing to ATR; and
(b) the Client has met all of its other obligations to ATR.
11.2 Receipt by ATR 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.
11.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 11.1:
(a) the Client is only a bailee of the Goods and must return the Goods to ATR on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for ATR and must pay to ATR the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for ATR and must pay or deliver the proceeds to ATR on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of ATR and must sell, dispose of or return the resulting product to ATR as it so directs.
(e) the Client irrevocably authorises ATR to enter any premises where ATR believes the Goods are kept and recover possession of the Goods.
(f) ATR may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of ATR.
(h) ATR may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to ATR for Services – that have previously been supplied and that will be supplied in the future by ATR to the Client.
12.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ATR 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 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, ATR 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 ATR;
(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 ATR;
(e) immediately advise ATR 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.
12.4 ATR and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by ATR, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Client must unconditionally ratify any actions taken by ATR under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of ATR 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).
13.2 The Client indemnifies ATR from and against all ATR’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ATR’s rights under this clause.
13.3 The Client irrevocably appoints ATR and each director of ATR as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify ATR in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow ATR to inspect the Goods.
14.2 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).
14.3 ATR acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, ATR makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. ATR’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Client is a consumer within the meaning of the CCA, ATR’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If ATR is required to replace the Goods under this clause or the CCA, but is unable to do so, ATR may refund any money the Client has paid for the Goods.
14.7 If the Client is not a consumer within the meaning of the CCA, ATR’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 Client by ATR at ATR’s sole discretion;
(b) limited to any warranty to which ATR is entitled, if ATR did not manufacture the Goods;
(c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 14.1; and
(b) ATR has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, ATR shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by ATR;
(e) fair wear and tear, any accident, or act of God.
14.10 ATR may in its absolute discretion accept non-defective Goods for return in which case ATR 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.
14.11 Notwithstanding anything contained in this clause if ATR is required by a law to accept a return then ATR will only accept a return on the conditions imposed by that law.
15. Intellectual Property
15.1 Where ATR has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of ATR. Under no circumstances may such designs, drawings and documents be used without the express written approval of ATR.
15.2 The Client warrants that all designs, specifications or instructions given to ATR will not cause ATR to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify ATR against any action taken by a third party against ATR in respect of any such infringement.
15.3 The Client agrees that ATR may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which ATR has created for the Client.
16. Default and Consequences of Default
16.1 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 ATR’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes ATR any money the Client shall indemnify ATR from and against all costs and disbursements incurred by ATR in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ATR’s contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies ATR may have under this contract, if a Client has made payment to ATR, 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 ATR under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
16.4 Without prejudice to ATR’s other remedies at law ATR shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to ATR shall, whether or not due for payment, become immediately payable if:
(a) any money payable to ATR becomes overdue, or in ATR’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by ATR;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
17.1 Without prejudice to any other remedies ATR may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions ATR may suspend or terminate the supply of Goods to the Client. ATR will not be liable to the Client for any loss or damage the Client suffers because ATR has exercised its rights under this clause.
17.2 ATR may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice ATR shall repay to the Client any money paid by the Client for the Goods. ATR shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by ATR as a direct result of the cancellation (including, but not limited to, any loss of profits).
18. Privacy Act 1988
18.1 The Client agrees for ATR 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 ATR.
18.2 The Client agrees that ATR 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.
18.3 The Client consents to ATR being given a consumer credit report to collect overdue payment on commercial credit.
18.4 The Client agrees that personal credit information provided may be used and retained by ATR for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
18.5 ATR 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.
18.6 The information given to the CRB may include:
(a) personal information as outlined in 18.1 above;
(b) name of the credit provider and that ATR 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 ATR has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of ATR, 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).
18.7 The Client shall have the right to request (by e-mail) from ATR:
(a) a copy of the information about the Client retained by ATR and the right to request that ATR correct any incorrect information; and
(b) that ATR does not disclose any personal information about the Client for the purpose of direct marketing.
18.8 ATR will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
18.9 The Client can make a privacy complaint by contacting ATR via e-mail. ATR 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.
19. Unpaid Seller’s Rights
19.1 Where the Client has left any item with ATR for repair, modification, exchange or for ATR to perform any other service in relation to the item and ATR has not received or been tendered the whole of any monies owing to it by the Client, ATR shall have, until all monies owing to ATR are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
19.2 The lien of ATR shall continue despite the commencement of proceedings, or judgment for any monies owing to ATR having been obtained against the Client.
20. Building and Construction Industry Security of Payment Act 2002
20.1 At ATR’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
20.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
21.1 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.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which ATR has its principal place of business, and are subject to the jurisdiction of the Courts in Victoria.
21.3 Subject to clause 14 ATR shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by ATR of these terms and conditions (alternatively ATR’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 ATR may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
21.5 The Client cannot licence or assign without the written approval of ATR.
21.6 ATR may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of ATR’s sub-contractors without the authority of ATR.
21.7 The Client agrees that ATR may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for ATR to provide Goods to the Client.
21.8 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.
21.9 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.
Please note that a larger print version of these terms and conditions is available from ATR on request. #35957 © Copyright – EC Credit Control 1999 - 2018