Terms and Conditions of Sale (subject to the provisions of the Competition and Consumer Act)
1. Application of Terms and Conditions
1.1 These terms and conditions of sale (“Terms”) together with any credit application, quotation, order (including on-line or web-based orders) or proposal to which these Terms are attached or in which these Terms are referred, together make up a legally binding agreement (“the Agreement”) between Tweed Coast Glass Pty Ltd ACN 083 211 509 (“TCG”) and the party named as the customer (“the Customer”) in the attached or previously signed or submitted credit application, quotation, invoice, order or proposal. Where the Customer is a corporation, the Customer acknowledges and agrees that the directors of the Customer and any person entering into this Agreement on behalf of the Customer each guarantee the performance of the Customer’s obligations under this Agreement (“the Guarantor”). This Agreement will be binding on the Customer and Guarantor/s by the Customer doing either one or more of the following:
a. Notifying TCG of acceptance of these Terms, either verbally or in writing; or
b. Signing these Terms; or
c. Signing the credit application, proposal, invoice, order or quotation issued by TCG in which these Terms were attached or referred to; or
d. Placing an order or accepting a quotation or proposal,
and the Customer and any Guarantor/s acknowledge that these Terms will then apply.
1.2 The Customer agrees that prior to placing an order with TCG, the Customer has read and agreed to these Terms.
1.3 TCG offers to supply goods and/or services to the Customer only on these Terms. Where the Customer has entered into a credit arrangement with TCG, the Customer acknowledges that clause 24 applies.
1.4 For the avoidance of doubt no TCG employee has any authority to accept any terms the Customer may suggest that are different from these Terms. TCG will not be bound by any terms or conditions expressed in any orders, quotations, applications, proposals or acceptances generated by the Customer except to the extent that such terms have been expressly agreed upon between the parties in writing and signed by TCG. For the avoidance of doubt, where the Customer attaches or refers to other terms and conditions in any orders, quotations, applications, proposals or acceptances received after this Agreement has been entered into, such additional terms are expressly excluded from this Agreement and will be of no force or effect against TCG unless TCG expressly agrees in writing.
1.5 The Customer and/or Guarantor acknowledge and agree that neither of them has relied on any representations made to the Customer and/or
Guarantor prior to or at the time of entering into this Agreement.
2. Placement of Order
2.1 The Customer may order goods from TCG in writing, by phone, email, facsimile or web-based ordering or other electronic communication or telecommunication acceptable to TCG (which includes without limitation purchase orders, the acceptance by the Customer of a quotation, proposal, order, application or variation prepared by TCG) (“Orders”). Should TCG’s manufacturing capacity be unable to accommodate the Order, TCG reserves the right to refuse acceptance at its discretion without any cost or penalty.
2.2 Orders given and accepted are subject to the following conditions:
a. All pricing is provided based on the information disclosed to TCG by the Customer at the time of quote preparation, and is based on TCG’s rates and costs of materials, transport, labour and other costs. The price may be increased by the amount of any increase in the cost to TCG of any such item or any other factors (including any change in exchange rates) affecting TCG’s cost of supply, production, labour or delivery of the goods or the supply of the services, or in circumstances where TCG, in its absolute discretion acting reasonably, is made aware of any additional factors not disclosed to TCG by the Customer that may affect the price of the goods or the supply of the services, including without limitation, any legislative changes to design
requirements or building standards.
b. For the avoidance of doubt, any alteration in quantity, sizes, specification, complexity or delivery may necessitate an adjustment to the price. TCG will notify the Customer of any adjustment to the price or any associated delays accordingly.
c. To the extent permitted by law, an Order may not be suspended, cancelled or amended without TCG’s consent in writing (which TCG may grant or reject in its absolute discretion). The Customer and/or Guarantor will be liable for all costs incurred by TCG as a result of any suspension, cancellation or amendment of any Order agreed to by TCG.
d. Costs and charges for freight and handling at the point of delivery to the Customer or the Customer’s agent are payable by the Customer unless otherwise stated on the Order.
3.1 All quotes provided by TCG to the Customer remain current for a period of 30 days only from the date the quote is provided. The amount detailed on the quote is not fixed and may be varied by TCG in accordance with these Terms. If the Customer has not accepted the quote within 30 days, the quote will no longer apply at which point TCGmaysupply an updated quote to the Customer.
3.2 TCG requires a fifty percent (50%) deposit from the Customer upon entering into this Agreement. The Customer acknowledges TCG is under no obligation to start any Order as requested by the Customer until the deposit is received in full by TCG. In circumstances where the Customer fails to pay TCG the deposit or any other monies owing to TCG under this Agreement, TCG will be entitled to terminate this Agreement, forfeit the deposit and claim any profit or margin contemplated by or allowed for in the Agreement in addition to any remedy available to TCG at law or in equity.
3.3 Unless otherwise advised in writing, the balance of any monies payable to TCG under this Agreement is due prior to delivery for supply only, or on customer pick up. For installation the balance of any monies payable to TCG under this Agreement is due prior to install. TCG reserves the right to alter the time for payment, in its absolute discretion, upon providing reasonable notice to the Customer. Should the Customer’s account exceed TCG’s agreed payment terms as set out in TCG’s invoice, TCG may:
a. withhold delivery of the goods and charge a storage fee to the Customer until full payment is made; and/or
b. charge interest at the rate of fifteen percent (15%) per annum calculated on a daily basis on amounts not paid when due; and/or
c. cancel or suspend any works or any further delivery to the Customer in respect of the goods.
If the Order has been sold under the WDS (windowanddoorsupplies.com.au) brand and split payment is approved, the balance of any monies is due prior to the Order entering fabrication.
3.4 The Customer and/or Guarantor must pay to TCG any costs, expenses or losses incurred by TCG as a result of the Customer’s failure topay to TCG all sums outstanding as owed by the Customer to TCG in accordance with this Agreement or the corresponding tax invoice.
4. Variations and Cancellations
4.1 If the Customer requests or TCG deems there to be a variation in the scope of the supply of goods, or the provision of the services, then TCG may notify
the Customer in writing of the variation,the price variation, associated delays and any other information TCG deems relevant.
4.2 TCG is not obliged to commence any works or perform any services associated with any variation as set out in this clause unless and until the Customer
acknowledges and agrees in writing the variations contained in any notice given by TCG to the Customer. For the avoidance of doubt, the Customer acknowledges that given the custom nature of the goods to be provided under this Agreement, variations may not be capable of being accepted by TCG and any variation to the scope of the goods and/or services is at the absolute discretion of TCG acting reasonably.
4.3 The Customer and/or Guarantor indemnifies and shall keep indemnified TCG from any additional cost incurred by TCG should the Customer make changes to or increase the scope of the goods and/or services to be provided in accordance with this Agreement or otherwise specified in the Order.
5. BCIPA
5.1 For the purposes of the Building and Construction Industry Security of Payments Acts (or equivalent acts) existing or enforceable from time to time in each State or territory in Australia:
a. every date on which goods are supplied shall be deemed a reference date, and TCG shall be entitled to issue payment claims accordingly; and
b. it shall be sufficient service of a payment claim if it is posted to the Customer’s postal address as specified in the Order or to such other postal address that the Customer notifies TCG from time to time.
6. Works
6.1 The Customer acknowledges and agrees that:
a.window and/or door handlings are viewed from outside looking in, and that sizes shown are aluminium frame sizes and do not include reveals;
b. All works carried out by TCG will be done in accordance with relevant codes AS1664, AS2047, AS2048, AS1288 (1989) and AS2208 (1978). TCG reserves
the right to alert the Customer of any breach of the relevant building code or legislative obligations and in doing so, the Customer acknowledges that TCG’s duty of care has been satisfied. If plans are not sighted, windows may not comply with AS1288. Furthermore, if no Basix, Acoustic or Bushfire reports are supplied, windows may not meet Building Code of Australia (“BCA”) requirements. The Customer and/or Guarantor acknowledge and agree that it is the Customer’s responsibility to ensure that all BCA requirements are met and that TCG will have no liability to the Customer if BCA requirements are not met;
c. Compliance letters, Forms 15 and 16 will not be released to the Customer until final payment has been received by TCG;
d. TCG standard allowance for packing and caulking is 10mm. The Customer will be charged for any additional costs incurred by TCG for any difference accordingly;
e. Windows and doors are installed plumb, level and straight and true to within acceptable building tolerances;
f. Windows and doors are fixed or anchored to the building structure conforming with the wind action loading requirements;
g.Windows and doors installed by TCG are not to carry any building loads, including loads caused by structural deflection or shortening; and
h. Variations in powder coat and anodising occurs due to different powder coating formulas used or the age of existing frames. Whilst TCG will use its best endeavours to assist the Customer incolour matching, the final choice in selecting the final colour is the Customer’s responsibility and TCG will not be liable for any colour difference in relation to the end product.
6.2 For the avoidance of doubt,the price does not include:
a. Provision of structural supports for installation;
b. Packing in excess of 10mm;
c. Relocation of any obstruction to allow installation of windows or doors;
d. Making good of the opening, including cavities, render, plaster, alcore flashings, face fitted reveals, architraves etc;
e. Working outside of standard operating hours (Monday to Thursday 7:30am-4:00pm and Friday 7:30am-1:30pm);
f. Cartage of more than 6 stairs and or carrying panels more than 50 metres from the unloading location of the vehicle to the area of installation;
g. Cutting of rebates into concrete for tracks, floor boxes etc; and
h. Provision of appropriate back support for hollow
metal sections, wall noggins or backing plates for frame and door hardware fixings.
6.3 The Customer acknowledges that the price may be increased accordingly in respect of any additional items to be carried out by TCG not otherwise
included in the price. Any additional items will be treated as a variation under this Agreement accordingly.
7. Returns
7.1 To the extent permitted by law and given the custom nature of the goods and/or services, TCG is not under any duty to accept goods returned by the Customer. Any return accepted by TCG will be at TCG’s absolute discretion.
8. Delivery
8.1 If a delivery date is specified in the Order, TCG will endeavour to deliver within the time specified but in no circumstances will TCG be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any delay in or failure of delivery in whole or in part. The failure of TCG to deliver shall not entitle either party to treat this agreement as repudiated.
8.2 TCG will deliver the goods to the address specified in the Order. TCG’s obligations to deliver the goods will be deemed satisfied upon the arrival of the
goods at the Customer’s nominated delivery destination, nominated transport company, nominated agent or the address appearing on the Order. Delivery to a third party or agent of the Customer will be deemed to be delivery for the purpose of this Agreement.
8.3 If for any reason the Customer is unable to accept delivery of the goods at the time when the goods are due and ready for delivery, TCG may store the goods at its own premises at an additional cost of 1% of the invoice value per week inclusive of GST. The full balance of the goods will become payable and due at completion of fabrication. The Customer will also be liable to TCG for any costs incurred by TCG in relation to the storage of the goods, including any additional handling insurance and transport costs. The Customer and Guarantor acknowledge that this right is in addition to and not in substitution of any other payment of damages for which the Customer may also become liable to TCG in respect of the Customer’s failure to take delivery of the goods.
8.4 TCG reserves the right to make part deliveries of any Order and each part delivery constitutes a separate sale of goods under this Agreement.
8.5 TCG will perform a “curb-side” delivery, or all windows will be place on the ground floor or in the garage/suitable cleared and accessible dry location. Any movement of goods beyond this will be quoted on a per job application and full JSA safety assessment conducted.
8.6 In dangerous weather condition delivery maybe be postponed due to a heightened safety risk. TCG will determine dangerous weather conditions based on the most recent weather advice. This may result in last minute postponements. TCG will not be liable for any costs as a result of cancellation due to adverse weather conditions.
8.7 Builders or customers will be responsible for supplying vertical lifting and placement for delivered goods.
8.8 Windows/doors will be delivered glazed at a maximum of 80KG per frame. All heavier frames will require site installation. Site installation is scheduled once your delivery is confirmed and may be delayed due to scheduling and weather conditions.
9. Defects
9.1 The Customer must examine the goods (on supply only) upon collection or delivery and for goods to be installed, upon installation. The Customer must
notify TCG of any defects in writing within seven(7) days of collection, delivery or installation. If notification of a defect is not received within this time frame, then subject to the Australian Consumer Law, the Customer shall be deemed to have accepted the goods.
9.2 If TCG accepts the goods as defective, TCG will at its discretion, replace the goods free of charge (to the original delivery point) or provide a credit to the Customer’s account. TCG reserves the right to inspect goods prior to determining whether any defect exists. For the avoidance of any doubt, at no time will any claim for defective goods exceed the amount specified on the invoice.
10. Third Party Installation
10.1 Where the Customer arranges for a third party to install the goods, the Customer must contract separately with that third party. TCG will not be liable for any installation services provided by a third party.
11. Title
11.1 Notwithstanding the delivery of the goods by TCG, the Customer acknowledges that title in the goods does not pass to the Customer until such time as the Customer has paid to TCG the full purchase price as specified in any corresponding invoice. The Customer acknowledges that it receives possession of and holds goods delivered by TCG solely as bailee for TCG until such time as all outstanding monies have been paid to TCG in full. If TCG does not pay for any goods as required under this Agreement, then TCG may enter the Customer’s premises (or any premises where the goods are stored) to re-take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Customer whatsoever.
12. Risk
12.1 Risk in the goods passes to the Customer upon collection or delivery of the goods to the Customer or its agent or to a nominated third party or when the goods have been installed by TCG. TCG is not liable to the Customer for any loss or damage or deterioration of the goods after collection or delivery. The Customer must insure the goods for any loss or damage from the date and time of delivery.
13. Security
13.1 The Customer acknowledges and agrees that:
a. this Agreement is a Security Agreement for the purposes ofthe Personal Property Securities Act 2009 (Cth) (“PPSA”) and creates a registrable security
interest under the PPSA in all goods previously supplied or to be supplied by TCG to the Customer in the future;
b. TCG has the right to register a financing statement under the PPSA with respect to the security interest created by this Agreement;
c. If TCG registers a security interest under the PPSA, TCG may exercise any or all remedies afforded to it as a secured party, without prejudice to any
other rights or remedies arising out of a breach by the Customer of anyagreement with TCG;and
d. The goods supplied or to be supplied by TCG to the Customer are collateral for the purposes of the PPSA.
e. The Customer waives any right the Customer has under the PPSA to receive notice in relation to registration events.
f. The Customer and TCG agree that neither party will disclose information of the kind specified under Section 275(1) of thePPSA.
g. TCG may elect, at its absolute discretion and at any time, that any section of the PPSA specified in Section 115 will not apply to the extent permitted by
Section 115 of the PPSA.
13.2 This clause shall survive the termination of the Agreement.
14. Warranty
14.1 TCG warrants that the goods are sold free from any defect in workmanship appearing under proper usage for a period of seven (7) years after the date of the corresponding invoice.
14.2 To the extent permitted by law, TCG does not provide any express warranty as to fitness or suitability of the goods for any specific purpose unless expressly stated by TCG in writing.
14.3 The benefits under this warranty given to the Customer are in addition to the other rights and remedies of the Customer under the Australian Consumer Law.
14.4 The Customer acknowledges and agrees that the benefit of the warranty will not apply in circumstances where:
a. the goods have not been maintained in accordance with any care instructions provided by TCG;
b. any loss or damage is caused to the goods by use of cleaning solvents or brick cleaning acids;
c. the goods have been damaged as a result of misuse, neglect or impact or where the Customer has continued to use the goods after a defect has been
detected or ought reasonably to have been detected;
d. in circumstances where TCG did not provide installation services, the goods were not installed as intended, failure to adhere to all Australian Standards
and/or using best building practices, or where installation was carried outafter a defect was detected or reasonably ought to have been detected;
e. work and/or services have been carried out on the goods by a third party other than TCG or its nominated agents;
14.5 For the avoidance of doubt, manufacturing standards and tolerances are not deemed defects, nor are industry variations in colour or textural finishes
of the aluminium surface finish in relation to the goods.
15. Liability
15.1 TCG acknowledges that the Australian Consumer Law contains certain guarantees for the supply of goods or services that cannot be excluded, restricted or modified by this Agreement. For example, for consumers:
a.come with non-excludable guarantees that they are of acceptable quality and fit for the purpose for which they are commonly acquired or for a purpose
made known to TCG and based on which the goods are supplied; and
b. services come with non-excludable warranties that they will be provided with due care and skill and are fit for the purpose for which they are commonly acquired or for a purpose made known to TCG and based on which the services are supplied. Nothing in this Agreement is intended to exclude or restrict the application of such laws.
15.3 To the extent permitted by law the Customer agrees that TCG’s liability for a failure to comply with a consumer guarantee that the Customer may have the benefit of under the Australian Consumer Law (other than in relations to sections 51, 52 or 53), is limited to, at the option of TCG, any one or more of the following:
a. in the case of goods: the replacement of the goods; the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the
goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
b. in the case of services: the resupply of services or paying for the cost of resupplying the services.
15.4 Subject to this clause, and to the maximum extent permitted by the Australian Consumer Law and all other applicable Law, TCG is not liable to the Customer or to any third party for (including without limitation):
a. any loss, cost, damage, expense, claim, demand, action, suit, proceeding (including without limitation for damage to the goods or injury or death to any person) of any kind caused by or resulting from any act or omission of the Customer or that third party or any of their employees, agents,contractors arising from:
i. the loading, unloading or delivery of the goods;
ii. a failure to deliver, or delay in delivering, the goods;
iii. a failure to install the goods in accordance with TCG’s recommended fixing procedures as provided to the Customer;
iv. the removal of defective goods or the installation of replacement goods; or
v. the use of any tool orequipment loaned or hired out by TCG;
b. any loss, cost, damage, liability, expense, claim, demand, action, suit, proceeding, injury or death sustained or incurred by the Customer or any third party, including without limitation any loss of profits, or economic, special, direct, in director consequential loss or damage, whether resulting directly or indirectly out of the supply, performance or use of any goods or out of any breach by TCG in relation to this Agreement, even if notified of the possibility of that potential loss or damage;
c. any claim, action or proceeding by a third party against the Customer (or any loss, damages or liability incurred or suffered by the Customer as a result
of any such claim, action or proceeding).
16. Indemnity
16.1 The Customer and/or Guarantor indemnifies TCG from and against all losses, damages, costs and expenses suffered or incurred by TCG, and all claims, demands, suits, actions or proceedings made or brought against TCG (including legal costs on a full indemnity basis), arising out of:
a. any breach or non-performance of the Agreement by the Customer, including any breach of a warranty;
b. any breach by the Customer of any consumer guarantee, warranty, right or remedy given by the Customer expressly or arising by operation of the
Australian Consumer Law or any other applicable Law;
c. TCG’s useof or reliance on anymaterials, design, drawing or specification provided to TCG by the Customer (including any allegation or claim that any
such use or reliance by TCG infringes the intellectual property rights of any person);
d. any loss or damage caused by or during the processing of materials supplied to TCG by the Customer;
e. any wrongful, wilful or negligent act or omission of the Customer or any of its employees, agents or contractors;
f. the storage, handling or use of the goods sold under or in connection with the Agreement, except to the extent that the relevant action, claim, proceeding, demand, liability, loss, damage, expense or cost was caused by the wrongful, wilful or negligent act or omission of TCG or any of its employees, agents or contractors; and
g. any injury or loss sustained by any person who is employed or engaged by the Customer as an employee, agent or contractor for the purpose of (among other things)the performance by the Customer of its obligations under this Agreement and who suffers any injury or loss arising out of or in the course of such employment or engagement.
17. Force Majeure
17.1 TCG will have no liability to the Customer in relation to any loss, damage or expense caused by TCG’s failure to deliver the goods or delay in delivering the goods as a result offire, flood,earthquake, civil disturbance, crime, strike, lockout, inability to obtain materials or parts or any other occurrence beyond the TCG’s control, but any such delay shall not exempt the Customer from the obligation to accept or take delivery of and pay for the goods.
18. Defaults
18.1 In the event of a default under this Agreement by the Customer, the whole of any outstanding balance will become immediately due and payable by the Customer to TCG together with all legal costs and expenses associated with recovery of the outstanding balance on an indemnity basis.
18.2 The certificate of a director or the credit manager of TCG will, in the absence of evidence to the contrary, be conclusive as to the amount of the outstanding balance.
18.3 No failure or delay of TCG to exercise any right or obligation of the Customer of any obligation under this Agreement and no waiver by TCG of any particular default by the Customer shall affect or prejudice TCG’s rights in respect of any subsequent default and no indulgence or forbearance by TCG of its rights under this Agreement shall adversely affect or prejudice its rights in relation to such default or any subsequent default.
19. Intellectual Property
20.1 The parties expressly agree that this Agreement will be governed by and interpreted in accordance with the laws of the State or Territory of Australia where the goods were delivered. The parties submit to the jurisdiction of the relevant State or Territory courts.
21. Privacy and Collection of Personal Information
21.1 TCG may collect and use the Customer’s personal information for the following purposes including without limitation:
a. to process and administer your dealings as a customer, including assessing your credit worthiness;
b. to provide you with the goods and services you have requested and assisting you with further relevant information including related information; and
c. to administer the transactions contemplated by this Agreement.
21.2 TCG will generally:
a. use personal Information provided to it for the purposes relating to these Terms;
b. use personal information collected by it in accordance with the Privacy Act 1988 (Cth) (the “Privacy Act”); and
c. not sell, trade, give or pass on to any third party any personal information unless such a disclosure is contemplated by and directly related to the purpose outlined by these Terms, or the Customer consents to such a disclosure or such disclosure is required to do so by law.
21.3 The Customer therefore authorises TCG to disclose the Customer’s personal information to third party contractors and service providers that assist TCG to operate its business and assist TCG to fulfil these Terms such as contractors and service providers involved in services including but not limited to the processing of Orders, order fulfilment and the collection of outstanding debts.
21.4 TCG relies on the Customer to ensure that the personal information provided to TCG is current and accurate. The Customer may find out what personal information TCG holds about them and, where necessary, may correct any errors in this information (some restrictions and costs may apply).
21.5 Where the Customer provides personal information to TCG concerning other individuals, the Customer represents and warrants to TCG that the information has been provided with the agreement of those persons and that TCG is authorised by them to use it. TCG may also use personal information provided to it to keep the Customer informed about our products and services.
21.6 The Customer consents to TCG collecting, using and disclosing the personal information provided to TCG on these Terms.
. GST
22.1 All amounts payable in relation to this Agreement are expressed to be exclusive of GST. If GST is payable on a taxable supply as defined in A New Tax System (Goods and Services Tax) Act 1999 then the amount payable by the Customer for that taxable supply will be the amount expressed plus GST.
23. Disputes
23.1 Any dispute or difference between the Customer and TCG may be notified by a party to the other party and the parties shall firstly meet to negotiate, in good faith, the resolutionof the dispute and secondly, if negotiation fails to achieve a resolution of the dispute within five (5) working days of the notification of the dispute, attend mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia, provided that this provision shall not prevent TCG from instituting legal action at any time to recover monies owing by the Customer to TCG.
24. Credit
24.1 Notwithstanding any other provision in these Terms, TCG may grant credit to the Customer under these Terms either unconditionally or with any condition it deems necessary in its absolute discretion, including but not limited to, a limit as to the amount of credit TCG agrees to grant to the Customer.
24.2 TCG may elect to increase, decrease or suspend any credit limit extended to the Customer at any time during the term of this Agreement by notice in
writing to the Customer.
24.3 The Customer and/or Guarantor acknowledge and agree that it must pay its account within 30 days from the date of any corresponding invoice. Failure
to do so may result in the Customer’s credit facilities being suspended or withdrawn.
25. Non-waiver
25.1 Failure by TCG to enforce or delay in enforcing any right or provision of this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed by TCG in writing.
26. Assignment
26.1 This Agreement between the Customer and TCG is binding on the parties and on their respective successors and assigns. The Customer may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without TCG’s prior written consent. TCG may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of our rights or obligations arising underit, at any time during the term of this Agreement by notice in writing to the Customer.
27. Variation of Terms and Conditions
27.1 TCG reserves the right to revise and amend these Terms from time to time to reflect changes in market conditions affecting TCG’s business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in TCG’s capabilities.
27.2 The Customer is subject to the policies and Terms in force at the time that the Customer submits and Order, unless any change to those policies or these Terms is required to be made by law or governmental authority (in which case it will apply to Orders previously placed by you), or if TCG notifies the Customer of the change to those policies or these Terms from time to time (in which case TCG will assume that the Customer has accepted the change to the terms and conditions, unless the Customer notifies TCG to the contrary within seven working days of receipt of such notice).
28. Electronic Communications
28.1 In addition to delivery in person, via post and via facsimile, the Customer agrees to have invoices, statements, notices or other relevant information sent via email or other electronic communication to TCG. TCG accepts no liability for any direct, indirect, special, consequential or other losses or damages of whatsoever kind arising out of any electronic transmission, access to, or the use of the website or any information contained therein (including for the avoidance of doubt, any viruses, malicious computer code or other forms of interference which may damage the Customer’s computer system. The Customer agrees to take its own precautions to ensure that the process which the Customer employs for submitting and receiving electronic communications or accessing TCG’s website does not expose the Customer to risk and contains appropriate protection to prevent damage to the Customer’s computer system caused by viruses, malicious computer codes or other forms of interference.
29. Confidentiality
29.1 The Customer must:
a. not use the Confidential Information for any purpose other than to perform its obligations pursuant to the Agreement;
b. immediately notify TCG in writing if the Customer becomes aware or suspects that any person has disclosed or intends to disclose Confidential Information otherwise than in accordance with the Agreement;
c. not copy, reproduce, make records of (in part or in whole) any Confidential Information except as is reasonably necessary for the performance of its obligations under the Agreement.
29.2 The obligations of confidentiality set out in the Agreement do not apply to Confidential Information:
a. which the Customer can show that was in its possession before it was disclosed to it by TCG (evidenced by written records);
b. which is or becomes generally available to the public (other than as a result of action by the Customer);
c. which is required by law to be disclosed.
29.3 The Customer acknowledges that TCG may provide its trading partners and/or third parties (including government agencies and debt collection agencies) with certain purchase information relating to TCG from time to time for the purposes of assisting and improving the goods and services that TCG delivers to customers. The Customer authorises TCG to provide that information to TCG trading partners and those third parties.
30. General
30.1 If any part of these Terms (including any provision, part, paragraph, phrase or word) is illegal, invalid or unenforceable it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from these Terms, but the remaining provisions will remain in full force and effect.
30.2 The Customer must comply with all applicable laws,regulations, industry standards and codes of conduct in Australia and any other relevant jurisdiction
in relation to all matters contemplated (whether expressly or implicitly) by these Terms.
30.3 In these Terms, unless the contrary intention appears:
a. a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
b. a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
c. a reference to dollars is to Australian Dollars;
d. the word “including” and similar expressions are not words of limitation;
e. a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and
f. where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
30.4 Any notice in connection with these Terms will be deemed to have been duly given when made in writing and delivered or sent by facsimile, post or email to the party to whom such notice is intended to be given, at the address, facsimile number or email address of that party in the Agreement or to such other address, facsimile number or email address as may from time to time be notified in writing to the other party.
30.5 These Terms contain the entire agreement of the parties with respect to its subject matter and may only be amended in writing.
30.6 These Terms do not create a relationship of agency,partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
30.7 TCG may set off any amount due for payment by TCG to the Customer against any amount due for payment by the Customer to TCG under this Agreement. The Customer may not set off under any circumstances.