Height Dynamics Pty Ltd – Terms & Conditions of Trade

© Copyright – EC Credit Control 1999 - 2014

1. Definitions

1.1 “Height Dynamics” means Height Dynamics Pty Ltd as trustee for Height Dynamics Unit Trust T/A Height Dynamics, its successors and assigns or any person acting on behalf of and with the authority of Height Dynamics Pty Ltd as trustee for Height Dynamics Unit Trust T/A Height Dynamics.

1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3 “Goods” means all Goods or Services supplied by Height Dynamics to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4 “Services” means all Services supplied by Height Dynamics to the Client at the Client’s request from time to time, including, but not limited to, any advice or recommendations (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.5 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Height Dynamics and the Client in accordance with clause 6 below.

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

2. Acceptance

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 agreement between the Client and Height Dynamics.

2.3 The Client accepts and acknowledges that all notices and communications with Height Dynamics must be in writing.

2.4 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentations made to the Client by Height Dynamics and the Client acknowledges that the Goods are bought relying solely upon the Client’s own skill and judgement.

2.5 The Client accepts and acknowledges all Services are subject to a site inspection with scope of Services documentation to be provided prior to commencement of the Services. Services will be provided at Height Dynamics’ sole discretion only after the satisfactory completion of any such site inspection and/or receipt of said documentation.

2.6 The Client accepts and acknowledges all Services required as part of the proposal is scheduled at rates for work over an eight (8) hour period (inclusive of meal breaks) conducted during business hours (Monday - Friday 6am-6pm). Any Services performed outside these specified hours may incur penalty rates unless otherwise stated in writing.

3. Electronic Transactions (Queensland) Act 2001

3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.

4. Change in Control

4.1 The Client shall give Height Dynamics 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 Height Dynamics as a result of the Client’s failure to comply with this clause.

5. Authorised Representatives

5.1 Unless otherwise limited as per clause 5.2 the Client agrees that should the Client introduce any third party to Height Dynamics as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies Height Dynamics in writing that said person is no longer the Client’s duly authorised representative).

5.2 In the event that the Client’s duly authorised representative as per clause 5.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Height Dynamics in writing of the parameters of the limited authority granted to their representative.

5.3 The Client specifically acknowledges and accepts that they will be solely liable to Height Dynamics for all additional costs incurred by Height Dynamics (including Height Dynamics’ profit margin) in providing any Goods, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 5.2 (if any)).

6. Price and Payment

6.1 At Height Dynamics’ sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by Height Dynamics to the Client; or

(b) the Price as at the date of delivery of the Goods according to Height Dynamics’ current price list; or

(c) Height Dynamics’ proposed price (subject to clause 6.2) which will be valid for the period stated in the proposal or otherwise for a period of thirty (30) days.

6.2 Height Dynamics 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) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, obscured site defects, availability of at least 240V AC power outlets, prerequisite work by any third party not being completed, site restrictions, change in design and/or specifications, Acts of God etc) which are only discovered on or after commencement of the Services; or

(d) in the event of increases to Height Dynamics in the cost of labour or materials (including but not limited to union action, and overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond Height Dynamics’ control.

6.3 At Height Dynamics’ sole discretion, a deposit of up to fifty percent (50%) of the Price may be required for all non-account Clients prior to commencement of the Services. The Client accepts that the balance is payable on completion of the Services unless otherwise agreed to in writing.

6.4 Furthermore, a non-refundable deposit of fifty percent (50%) of the Price shall be required before the commencement of production of any custom-made Goods.

6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Height Dynamics, which may be:

(a) on delivery of the Goods;

(b) before delivery of the Goods;

(c) by way of instalments/progress payments in accordance with Height Dynamics’ payment schedule;

(d) the first day following the end of the month in which a statement is posted/emailed to the Client’s address or address for notices;

(e) the date specified on any invoice or other form as being the date for payment; or

(f) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by Height Dynamics.

6.6 Height Dynamics may submit a detailed payment claim at intervals not less than weekly (or as otherwise negotiated) for work performed up to the end of each week. The value of work so performed shall include the reasonable value of authorised variations and the value of materials delivered to the site but not installed.

6.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card excluding AMEX and Diners (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and Height Dynamics.

6.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Height Dynamics an amount equal to any GST Height Dynamics must pay for any supply by Height Dynamics under this or any other agreement for the sale of the Goods / provision of the Services. 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.

7. Exclusions

7.1 Unless expressly stated otherwise, Height Dynamics’ proposal makes no provision for;

(a) site specific EBA’s; or

(b) site allowances; or

(c) safety courses and inductions; or

(d) special arrangements.

Any additional Goods and/or Services not expressly provided for in Height Dynamics’ proposal (including, but not limited to those additional Services listed in clause 6.2) shall be charged for on the basis of Height Dynamics’ proposal and will be shown as a variation on the invoice. Payment for all variations must be made in full at their time of completion.

8. Delivery of Goods

8.1 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 Height Dynamics’ address; or

(b) Height Dynamics (or Height Dynamics’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.

8.2 At Height Dynamics’ sole discretion, the cost of each delivery is in addition to the Price.

8.3 Height Dynamics 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 Any time or date given by Height Dynamics to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Height Dynamics will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

9. Risk

9.1 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.

9.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Height Dynamics is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Height Dynamics is sufficient evidence of Height Dynamics’ rights to receive the insurance proceeds without the need for any person dealing with Height Dynamics to make further enquiries.

9.3 If the Client requests Height Dynamics to leave Goods outside Height Dynamics’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

9.4 Height Dynamics reserves the right to refuse to enter the site to undertake the Services in the event that Height Dynamics believes the site to be unsafe. In this event, the Client agrees that it is their responsibility to ensure the site is made safe before Height Dynamics will enter the site, Height Dynamics shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe site.

10. Specifications

10.1 The Client acknowledges that:

(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in Height Dynamics’ 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 Height Dynamics;

(b) while Height Dynamics may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that Height Dynamics has given these in good faith and based on prescribed estimates which may be inaccurate due to factors out of Height Dynamics’ control (including, but not limited to, the location (geographical or otherwise) of the Goods);

(c) some buildings may not have the optimum orientation for the installation of the Goods or components, and therefore understands and accepts that the Goods performance may be compromised in such situations. Notwithstanding the former, Height Dynamics will use its best endeavours to install and position the Goods to maximise performance.

10.2 The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.

10.3 Height Dynamics reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases Height Dynamics will notify the Client in advance of any such substitution.

11. Client’s Responsibilities

11.1 The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify Height Dynamics against any costs incurred by Height Dynamics as a consequence of such discovery. Under no circumstances will Height Dynamics handle removal of asbestos product.

11.2 Height Dynamics is not responsible for the removal of rubbish from or clean-up of the building/constructions site/s. This is the responsibility of the Client or the Client’s agent, unless otherwise specified in Height Dynamics’ proposal.

11.3 It is further agreed that:

(a) the Client will supply temporary lighting, toilet, eating and first aid facilities if required; and

(b) the Client will advise all amenity locations (including, without limitation, water, gas, electricity, telephone or any other underground amenity) to Height Dynamics prior to site attendance.

11.4 Height Dynamics may at its discretion notify the Client that it requires to store at the worksite materials, fittings and appliances, or plant and tools required for the Services, in which event the Client shall supply Height Dynamics a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Client’s responsibility.

12. Access

12.1 The Client shall ensure that Height Dynamics has clear and free access to the work site at all times to enable them to undertake the Services. Height Dynamics shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Height Dynamics.

13. Underground Locations

13.1 Prior to Height Dynamics commencing any work the Client must advise Height Dynamics of the precise location of all underground services and/or structures on the site and clearly mark the same. The underground mains, services and structures which 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.

13.2 Whilst Height Dynamics will take all care to avoid damage to any underground services the Client agrees to indemnify Height Dynamics 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 13.1.

14. Title To Goods

14.1 Height Dynamics and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid Height Dynamics all amounts owing to Height Dynamics; and

(b) the Client has met all of its other obligations to Height Dynamics.

14.2 Receipt by Height Dynamics 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.

14.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 14.1:

(a) the Client is only a bailee of the Goods and must return the Goods to Height Dynamics on request.

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Height Dynamics and must pay to Height Dynamics 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 Height Dynamics and must pay or deliver the proceeds to Height Dynamics on demand.

(d) the Client should not convert, modify, devalue 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 Height Dynamics and must sell, dispose of or return the resulting product to Height Dynamics as it so directs.

(e) the Client irrevocably authorises Height Dynamics to enter any premises where Height Dynamics believes the Goods are kept and recover possession of the Goods.

(f) Height Dynamics 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 Height Dynamics.

(h) Height Dynamics may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

15. Personal Property Securities Act 2009 (“PPSA”)

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

15.2 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 that has previously been supplied and that will be supplied in the future by Height Dynamics to the Client.

15.3 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 Height Dynamics 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 15.3(a)(i) or 15.3(a)(ii);

(b) indemnify, and upon demand reimburse, Height Dynamics 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 Height Dynamics;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Height Dynamics;

(e) immediately advise Height Dynamics of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.

15.4 Height Dynamics 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.

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

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

15.7 Unless otherwise agreed to in writing by Height Dynamics, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

15.8 The Client must unconditionally ratify any actions taken by Height Dynamics under clauses 15.3 to 15.5.

15.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

16. Security and Charge

16.1 In consideration of Height Dynamics 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).

16.2 The Client indemnifies Height Dynamics from and against all Height Dynamics’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Height Dynamics’ rights under this clause.

16.3 The Client irrevocably appoints Height Dynamics and each director of Height Dynamics as the Client’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 Client’s behalf.

17. Inspection of Client’s Height Safety Equipment

17.1 Height Dynamics agrees to accept caretaker responsibility for the Client’s height safety equipment at the time of pick up from the Client or delivery by the Client to Height Dynamics, if accompanied by the relevant completed documentation.

17.2 Notwithstanding clause 17.1 above, Height Dynamics accepts no liability for any loss or damage to the Client’s equipment where such loss or damage is due to an event outside Height Dynamics’ control (in accordance with clause 28.6.

17.3 The Client accepts and agrees that any of the Client’s height safety equipment which fails an inspection by Height Dynamics may be destroyed, at the discretion of the inspector, as outlined in AS/NZS 1891.4 section 9 (Inspection Criteria). Height Dynamics agrees to notify the Client before any such destruction takes place.

17.4 The Client further acknowledges that, in the event that the Client’s height safety equipment remains at the premises of Height Dynamics for a period in excess of three (3) weeks following written notification to the Client that the inspection has been completed, then:

(a) any such height safety equipment may be returned to the Client at the Client’s expense; and/or

(b) Height Dynamics shall be entitled to charge the Client storage fees; and/or

(c) ownership of the Client’s height safety equipment shall pass to Height Dynamics (subject to the conditions of clause 25).

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

18.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Height Dynamics in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or proposal. 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 Height Dynamics to inspect the Goods.

18.2 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).

18.3 Height Dynamics acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

18.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Height Dynamics makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Height Dynamics’ liability in respect of these warranties is limited to the fullest extent permitted by law.

18.5 If the Client is a consumer within the meaning of the CCA, Height Dynamics’ liability is limited to the extent permitted by section 64A of Schedule 2.

18.6 If Height Dynamics is required to replace the Goods under this clause or the CCA, but is unable to do so, Height Dynamics may refund any money the Client has paid for the Goods.

18.7 If the Client is not a consumer within the meaning of the CCA, Height Dynamics’ 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 Height Dynamics at Height Dynamics’ sole discretion;

(b) limited to any warranty to which Height Dynamics is entitled, if Height Dynamics did not manufacture the Goods;

(c) otherwise negated absolutely.

18.8 Subject to this clause 18, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 18.1; and

(b) Height Dynamics 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.

18.9 Notwithstanding clauses 18.1 to 18.8 but subject to the CCA, Height Dynamics 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 the 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 Height Dynamics;

(e) fair wear and tear, any accident, or act of God.

18.10 Height Dynamics may in its absolute discretion accept non-defective Goods for return in which case Height Dynamics 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.

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

19. Intellectual Property

19.1 Where Height Dynamics has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Height Dynamics.

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

19.3 The Client agrees that Height Dynamics may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Height Dynamics has created for the Client.

20. Default and Consequences of Default

20.1 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 Height Dynamics’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

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

20.3 Without prejudice to any other remedies Height Dynamics may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Height Dynamics may suspend or terminate the supply of Goods/Services to the Client. Height Dynamics will not be liable to the Client for any loss or damage the Client suffers because Height Dynamics has exercised its rights under this clause.

20.4 Without prejudice to Height Dynamics’ other remedies at law Height Dynamics shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Height Dynamics shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Height Dynamics becomes overdue, or in Height Dynamics’ 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.

21. Cancellation

21.1 Height Dynamics may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are due to be delivered by giving written notice to the Client. On giving such notice Height Dynamics shall repay to the Client any money paid by the Client for the Goods. Height Dynamics shall not be liable for any loss or damage whatsoever arising from such cancellation.

21.2 In the event that the Client cancels delivery of the Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Height Dynamics as a direct result of the cancellation (including, but not limited to, any loss of profits).

21.3 The Client accepts and acknowledges that cancellation of the Services must be received in writing at least eighteen (18) hours prior to scheduled commencement. Notification received with less than eighteen (18) hours’ notice will be charged to the Client in addition to the proposal.

21.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed. Any deposit paid by the Client for production of custom-made Goods is non-refundable, in accordance with clause 6.4.

22. Dispute Resolution

22.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:

(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

23. Compliance with Laws

23.1 The Client and Height Dynamics 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.

23.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.

23.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation (including, but not limited to, Safe Work Method Statements (SWMS) and Job Safety Analysis (JSA)).

24. Privacy Act 1988

24.1 The Client agrees for Height Dynamics 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 Height Dynamics.

24.2 The Client agrees that Height Dynamics 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 years.

24.3 The Client consents to Height Dynamics being given a consumer credit report to collect overdue payment on commercial credit.

24.4 The Client agrees that personal credit information provided may be used and retained by Height Dynamics 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.

24.5 Height Dynamics 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.

24.6 The information given to the CRB may include:

(a) personal information as outlined in 24.1 above;

(b) name of the credit provider and that Height Dynamics 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 Height Dynamics has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of Height Dynamics, 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).

24.7 The Client shall have the right to request (by e-mail) from Height Dynamics:

(a) a copy of the information about the Client retained by Height Dynamics and the right to request that Height Dynamics correct any incorrect information; and

(b) that Height Dynamics does not disclose any personal information about the Client for the purpose of direct marketing.

24.8 Height Dynamics will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.

24.9 The Client can make a privacy complaint by contacting Height Dynamics via e-mail. Height Dynamics 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.

25. Unpaid Seller’s Rights

25.1 Where the Client has left any item with Height Dynamics for inspection or for Height Dynamics to perform any other service in relation to the item and Height Dynamics has not received or been tendered the whole of any moneys owing to it by the Client, Height Dynamics shall have, until all moneys owing to Height Dynamics 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.

25.2 The lien of Height Dynamics shall continue despite the commencement of proceedings, or judgment for any moneys owing to Height Dynamics having been obtained against the Client.

26. Building and Construction Industry Payments Act 2004

26.1 At Height Dynamics’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.

26.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.

27. Service of Notices

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

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this contract;

(c) by sending it by registered post to the address of the other party as stated in this contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

27.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

28. General

28.1 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.

28.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland the state in which Height Dynamics has its principal place of business, and are subject to the jurisdiction of the Brisbane Courts in Queensland.

28.3 Subject to clause 18 Height Dynamics 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 Height Dynamics of these terms and conditions (alternatively Height Dynamics’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

28.4 Neither party to this contract may assign this contract, any payment or any other right, benefit or interest under this contract without the written consent of the other party (which shall not be unreasonably withheld). Height Dynamics 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 Height Dynamics’ sub-contractors without the authority of Height Dynamics.

28.5 The Client agrees that Height Dynamics 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 Height Dynamics to provide Goods to the Client.

28.6 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.

28.7 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.