AVI Terms & Conditions of Trade
1.1 “Application Software” means any software that can be installed and operated on a personal computer or a network server and is not embedded as firmware on any hardware manufactured or supplied by AVI.
1.2 “AVI” means any of Audio Visual Imagenation Pty Ltd (ABN 840 525 177 18), AVI Pty Ltd (ABN 86 110 460 181), AVI Contractors Pty Ltd (ABN 22 168 307 793), Autonomous Vehicle Interoperability Pty Ltd (ABN 16 135 844 138), AVI Electronics Pty Ltd, (ABN 48 007 585 631) or AVI Enclosures Pty Ltd (ABN 34 606 026 091) its successors and assigns or any person acting on behalf of and with the authority of AVI.
1.3 “CCA” means the Competition and Consumer Act 2010 (Cth).
1.4 “Confidential Information” means this contract, and any information (in whatever form) or documentation of a confidential nature (or which the Customer, including its personnel, ought reasonably to know to be confidential) which relates to the business, affairs or activities of AVI, and includes any of AVI’s Goods, AVI’s Application Software, AVI’s Embedded Software and AVI documentation, whether or not marked or labelled as confidential.
1.5 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.6 “Delivery” is defined in clause 5.1.
1.7 “Embedded Software” means any software that is installed on and operates as firmware in conjunction with any hardware manufactured or supplied by AVI.
1.8 “Goods” means all goods, products, equipment and materials (including any licence to use and/or install Application Software, any licence to use Embedded Software, and materials provided for use in any Services) supplied by AVI to the Customer at the Customer’s request from time to time.
1.9 “Intellectual Property Rights” means all intellectual, industrial and other proprietary rights in relation to any technology or other development or creation, including any copyright, patents and patent applications, rights in inventions, designs, trade marks (whether registered or common law), circuit layout rights, plant breeders rights, rights in confidential information and other similar rights at law, whether statutory, common law or in equity.
1.10 “PPSA” means the Personal Properties Securities Act 2009 (Cth).
1.11 “Price” means the amount payable for the Goods and/or Services as agreed between AVI and the Customer in accordance with clause 4 below.
1.12 “Services” means any activities, and any works, identified in any invoice or quotation, or identified in any SOW attached to, or referenced in, any invoice or quotation.
1.13 “Software” means either or both, as the case requires, Application Software and Embedded Software.
1.14 “SOW” or “Scope of Works” means a document setting out the technical specifications of Goods to be supplied, work to be performed, or a system to be supplied.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts delivery of, the Goods, and/or places an order for, or accepts performance of, any Services.
2.2 These terms and conditions may only be amended with AVI’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and AVI.
2.3 The Customer acknowledges and accepts that AVI at their discretion, reserves the right not to supply Goods and/or Services for any reason (including but not limited to, where the Goods, or where any materials, parts or components for the Goods and/or Services, are not, or cease to be, available, account disputes or conditions placed on AVI by their suppliers). AVI shall not be liable to the Customer for any loss or damage the Customer suffers due to AVI exercising its rights under this clause.
3. Change in Control
3.1 The Customer shall give AVI not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by AVI as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At AVI’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by AVI to the Customer; or
(b) AVI’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 AVI reserves the right to change the Price if a variation to AVI’s quotation is requested. AVI may by giving notice to the Customer at any time up to seven (7) days before delivery of any Goods or performance of any Services, increase the Price of the Goods and/or Services to reflect any increase in the cost to AVI beyond the reasonable control of AVI (including, without limitation, foreign exchange fluctuations, taxes and duties, provisions of any Acts, By-Law, Order or Regulation of any parliament, municipality or local authority enacted after the date of contract between the Customer and AVI, and the cost of labour, materials and other manufacturing costs).
4.3 At AVI’s sole discretion a non-refundable deposit, or advanced payment up to 100% of the value of the Goods and/or Services, may be required.
4.4 Time for payment for the Goods and/or Services being of the essence, the Price will be payable by the Customer on the date/s determined by AVI, which may be:
(a) on delivery of the Goods;
(b) upon performance of the Services;
(c) at monthly intervals, or upon completion of specific milestones, during performance of any Services;
(d) the date specified on any invoice or other form as being the date for payment (including in advance of delivery of any Goods and/or Services); or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by AVI.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price), or by any other method as agreed to between the Customer and AVI.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to AVI an amount equal to any GST AVI must pay for any supply by AVI under this or any other agreement for the sale of the Goods and/or performance of the Services. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at AVI’s address; or
(b) AVI (or AVI’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.2 At AVI’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3 Payment of any Governmental duties applicable to the supply of any Goods and/or the performance of any Services is the Customer’s sole responsibility, and any such duties are additional to the Price.
5.4 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to, or does not, take delivery of the Goods as arranged then AVI shall be entitled to either deliver the Goods at the agreed delivery point, or retain the goods and charge a reasonable fee for redelivery and/or storage of the Goods.
5.5 AVI 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. Failure by the Customer to pay for any instalments will entitle AVI to withhold delivery of any remaining Goods.
5.6 Any time or date given by AVI to the Customer for supply, or delivery, of the Goods is an estimate only. The Customer must still accept delivery of the Goods even if late, and the Customer agrees that AVI will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
5.7 The Customer acknowledges that the specifications of the Goods assume variations and tolerances dependent on the nature of the materials and methods of manufacture used. It is the Customer’s obligation to enquire prior to entering into this contract as to the variation and tolerance levels for the Goods which may be relevant to the Customer’s requirements and how they may affect the use, wear and/or tear of the Goods.
6.1 Risk of damage to or loss of the Goods passes to the Customer upon commencement of:
(a) loading of the Goods at AVI’s premises (if the Goods are collected by the Customer or the Customer’s nominated carrier), even if the loading is performed by AVI personnel and/or equipment; or
(b) unloading of the Goods at the Customer’s premises or nominated delivery address, even if the unloading is performed by AVI personnel and/or equipment (including AVI’s nominated carrier).
6.2 The Customer must insure the Goods on or before Delivery, and AVI is not liable for any loss of, or damage to, the Goods suffered by the Customer on or after Delivery.
6.3 If any of the Goods are damaged or destroyed on or following delivery but prior to ownership passing to the Customer, AVI is entitled to receive all insurance proceeds payable for the Goods, whether such proceeds are from AVI’s insurance or Customer’s insurance. The production of these terms and conditions by AVI is sufficient evidence of AVI’s rights to receive the insurance proceeds without the need for any person dealing with AVI to make further enquiries.
6.4 If the Customer requests AVI to leave Goods outside AVI’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
7.1 AVI and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid AVI all amounts owing to AVI; and
(b) the Customer has met all of its other obligations to AVI.
7.2 Receipt by AVI 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.
7.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 7.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to AVI on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for AVI and must pay to AVI the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for AVI and must pay or deliver the proceeds to AVI on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of AVI and must sell, dispose of or return the resulting product to AVI as AVI so directs;
(e) the Customer irrevocably authorises AVI to enter any premises where AVI believes the Goods are kept and recover possession of the Goods;
(f) AVI may recover possession of any Goods in transit whether or not delivery has occurred;
(g) the Customer 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 AVI; and
(h) AVI may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
8.1 If AVI performs Services on a site nominated or controlled by the Customer, the Customer:
(a) will provide AVI with access to the areas of the site at the times reasonably necessary for AVI to perform the Services;
(b) throughout the period that AVI is performing the Services, ensure that the site is safe for entry by AVI personnel, and for performance of the Services by AVI personnel, having regard to HSE standards no less stringent than Australian HSE legislative requirements;
(c) co-ordinate and actively manage activities of the Customer and third parties on the site so that AVI personnel are not unduly hindered or delayed in the performance of the Services;
(d) notify AVI a reasonable period in advance of AVI performing the Services of any information that AVI needs to know in order to plan and perform the services in a safe, efficient and cost effective manner, and in order to enter and remain on the site; and
(e) provide AVI with all information AVI reasonably requires in order to perform the Services, including information required for AVI to install, commission maintain, service and trouble-shoot any Goods, equipment, systems or Software specified in the Services, including information in relation to the performance and operation of any Customer or third party systems or equipment interfacing or interacting with any Goods, Software or other equipment installed, commissioned, serviced or maintained by AVI.
8.2 The Customer agrees that AVI will have no liability to the Customer for any loss or damage suffered by the Customer as a result of the Customer breaching clause 8.1, and the Customer agrees to indemnify, and to hold harmless, AVI, its directors, officers, employees, agents and contractors against any loss or damage suffered or incurred by the Customer as a result of, or arising in connection with, the Customer breaching clause 8.1.
9. Intellectual Property
9.1 Ownership of, and title to, any Intellectual Property Right in any Goods and/or Services supplied by AVI to the Customer will vest solely and absolutely in AVI upon creation, and will remain solely and absolutely with AVI, including any Intellectual Property Rights in any features suggested, specified or requested by the Customer, and nothing in these terms and conditions transfers to the Customer, or causes to vest in the Customer, any right of ownership in, or any title to, the Intellectual Property Rights in any AVI – Terms and Conditions of Trade MAN-DOC-076-3.5 page 4 of 9 Goods and/or any Services, including any features in any Goods and/or Services suggested, specified or requested by the Customer.
9.2 To the extent that the Customer at law has any right, title or interest in any Intellectual Property Rights in any feature of any Goods and/or Services suggested, specified or requested by the Customer, the Customer hereby assigns to AVI, or agrees to assign to AVI (as applicable), all of the Customer’s right, title and interest in and to the Intellectual Property Rights in any features of any Goods and/or Services suggested, specified or requested by the Customer.
9.3 The Customer agrees to execute, and to procure its personnel to execute, at AVI’s expense, any document reasonably required by AVI to perfect AVI’s title to the Intellectual Property Rights specified in clause 9.2.
9.4 Subject to clause 9.5, AVI grants to the Customer a non-exclusive licence under the Intellectual Property Rights in any Goods and/or any Services to use and maintain the Goods, and to enjoy the benefit of any Services.
9.5 The licence in clause 9.4:
(a) in respect of Intellectual Property Rights in any hardware, is for the life of the hardware;
(b) in respect of the copyright in any Embedded Software, is specific to, and for the life of, the hardware in which the Embedded Software is installed;
(c) in respect of the copyright in any Application Software, is for the term of the applicable licence fee for that Application Software, including as renewed or extended by the Customer from time to time;
(d) does not at any time permit the Customer to reverse engineer, decompile or otherwise obtain (or attempt to obtain) source code for any Software directly from any object code, compiled code or any hardware;
(e) unless expressly stated in a purchase order, scope of work, or other contractual documentation accompanying these terms and conditions, does not permit the Customer to, and the Customer must not, copy or distribute copies of any Software within the Customer’s organisation, or to any third party, except as may be reasonably necessary to back-up and restore the Software for use as permitted by these terms and conditions;
(f) does not permit the Customer to, and the Customer must not, modify, edit, amend, change, improve or otherwise make derivative works of any Software.
9.6 All Software is confidential to AVI and subject to the conditions of clause 10, including (without limitation) that the Customer must not copy, disclose, distribute or transmit any Software, or any copy of any Software, to any third party without the prior written consent of AVI, and that the Customer must not use the Software for any purpose other than the purpose for which it was supplied by AVI.
9.7 Customer agrees to notify AVI promptly in writing of any notice, suit, or other action against Customer or AVI based upon a claim that any Goods and/or Services supplied under these terms and conditions infringe any Intellectual Property Rights of, or any obligation of confidence to, any third party.
9.8 Customer acknowledges and agrees that AVI makes no representations, and provides no warranty or guarantee, that use of any Goods and/or Services will not infringe the Intellectual Property Rights of any third party, and to the extent permissible at law, Customer accepts all risk and liability in relation to third party intellectual property rights arising from, or connected with, use of any Goods and/or Services.
10. Confidential Information
10.1 Customer undertakes and agrees:
(a) to hold in strict confidence all Confidential Information and not to disclose or permit or cause the Confidential Information to be disclosed to any person other than any of its directors, officers, employees, agents and representatives who require the Confidential Information for the purposes of the Contract; and
(b) not to make use of the Confidential Information (including duplicating, reproducing, distributing, disseminating or directly or indirectly deriving information from the Confidential Information), except and solely to the extent necessary for the Customer to perform its obligations under the Contract, unless the Customer has obtained the prior written consent of AVI to do so (which consent may be withheld by AVI in its discretion or given on such terms as it sees fit).
10.2 Clause 10.1 does not apply in respect to:
(a) information after it becomes generally available to the public other than as a result of the breach of this Clause 10 or any other obligations of confidence imposed on the Customer; or
(b) the disclosure of information in order to comply with any applicable law or legally binding order of any court, Government Agency or recognised stock exchange, provided that prior to such disclosure the Customer gives Notice to AVI with full particulars of the proposed disclosure;
10.3 The obligations in this Clause 10 are in addition to and do not diminish the obligations of the Customer in respect of secret and confidential information at common law or under any statute or trade or professional custom or use.
10.4 Subject to clause 10.2, if requested by AVI, whether prior to or after the expiry or earlier termination of this agreement, the Customer must promptly deliver to AVI all Confidential Information in the custody, possession or control of the Customer or any of its directors, officers, employees, agents and representatives.
10.5 This clause 10 survives termination and expiry of this agreement.
11. Defence and Technology Export Control Laws
11.1 Certain Goods sold by AVI are subject to export control regulations of Australia, United Kingdom, United States of America, and other countries (“Technology Export Laws”). The Customer agrees to comply with all Technology Export Laws and agrees to obtain any licence or permit required to transfer, export, re-export or import any Goods subject to any Technology Export Laws.
11.2 The Customer will not, whether directly or indirectly, sell, permit to be sold, dispose of, export, re-export or otherwise provide Goods to any country or entity under sanction or embargo administered by Australia, the United Kingdom, the United States of America, New Zealand or Canada.
11.3 The Customer represents, warrants and agrees that any Goods purchased from AVI will not be used, sold or incorporated into products used directly or indirectly in the design, development, production, or use of chemical, biological or nuclear weapons, delivery vehicles and systems of chemical, biological or nuclear weapons, or in the development, deployment or operation of any weapons of mass destruction.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause, each of the terms: “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 Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by AVI to the Customer.
12.3 The Customer 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 AVI 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, AVI 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 AVI;
(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 AVI;
(e) immediately advise AVI 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 AVI and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Customer 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 Customer 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 AVI, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by AVI under clauses 12.3 to 12.5.
12.9 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.
13. Not Used
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify AVI in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow AVI 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 AVI 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, AVI makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods and/or Services. AVI’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, AVI’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If AVI is required to replace the Goods, or to reperform the Services. under this clause or the CCA, but is unable to do so, AVI may refund any money the Customer has paid for the Goods and/or the Services.
14.7 If the Customer is not a consumer within the meaning of the CCA, AVI’s liability for any defect or damage in the Goods and/or Services is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by AVI at AVI’s sole discretion;
(b) limited to any warranty to which AVI is entitled, if AVI 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 Customer has complied with the provisions of clause 14.1; and
(b) AVI has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’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, AVI shall not be liable for any defect or damage to any Goods and/or Services which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods and/or the Services (or the outcome of any Services) for any purpose other than that for which they were designed or performed;
(c) the Customer continuing the use of any Goods and/or Services (or the outcome of any Services) after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by AVI;
(e) fair wear and tear, any accident, or act of God.
14.10 AVI may in its absolute discretion accept non-defective Goods for return in which case AVI may require the Customer to pay: i) a handling fee, being the greater of twenty percent (20%) of the value of the returned Goods or fifty dollars ($50); and ii) any freight costs.
14.11 Notwithstanding anything contained in this clause if AVI is required by a law to accept a return then AVI will only accept a return on the conditions imposed by that law.
15. Default and Consequences of Default
15.1 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 AVI’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Customer owes AVI any money the Customer shall indemnify AVI from and against all costs and disbursements incurred by AVI in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AVI’s collection agency costs, and bank dishonour fees).
15.3 Without prejudice to any other remedies AVI may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions AVI may suspend or terminate the supply of Goods to, or the performance of any Services for, the Customer. AVI will not be liable to the Customer for any loss or damage the Customer suffers because AVI has exercised its rights under this clause.
15.4 Without prejudice to AVI’s other remedies at law, AVI shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to AVI shall, whether or not due for payment, become immediately payable if:
(a) any money payable to AVI becomes overdue, or in AVI’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer 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 Customer or any asset of the Customer.
16.1 AVI may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered, or cancel performance (including completion) of any services, by giving written notice to the Customer. On giving such notice AVI shall repay to the Customer any money paid by the Customer for the Goods and/or Services. AVI shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Customer cancels delivery of Goods, or cancels the performance of any Services, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by AVI as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 Cancellation by the Customer of an order for Goods made to the Customer’s specifications, or for non-stocklist items, will not be accepted by AVI once production of those Goods has commenced, or once AVI has placed an order for components, parts or materials for use in the manufacture of those Goods.
17. Privacy Act 1988
17.1 The Customer agrees for AVI to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer.
17.2 The Customer agrees that AVI may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application for credit made by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of a credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.3 The Customer consents to AVI being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Customer agrees that personal credit information provided may be used and retained by AVI for the following purposes (and for other purposes as shall be agreed between the Customer and AVI or required by law from time to time):
(a) the provision of Goods and/or Services; and/or
(b) the marketing of Goods and/or Services by AVI, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods and/or Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods and/or Services.
17.5 AVI may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
17.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that AVI is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of AVI, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by AVI has been paid or otherwise discharged.
18. Unpaid Seller’s Rights
18.1 Where the Customer has left any item with AVI for repair, modification, exchange or for AVI to perform any other service in relation to the item and AVI has not received or been tendered the whole of any moneys owing to it by the Customer, AVI shall have, until all moneys owing to AVI 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.
18.2 The lien of AVI shall continue despite the commencement of proceedings, or judgment for any moneys owing to AVI having been obtained against the Customer.
19. Construction Contracts Act 2004
19.1 At AVI’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Construction Contracts Act 2004 may apply.
19.2 Nothing in this agreement is intended to have the affect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia.
20.1 The Customer represents and warrants that it (including its directors, officers, employees, agents and representatives) has not violated, and will not violate, in connection with:
(a) the purchase of any Goods under these terms and conditions; or
(b) any resale or supply to third parties of Goods supplied to the Customer under these terms and conditions; or
(c) the supply of any Services, the Australian Criminal Code Act 1995, the US Foreign Corrupt Practices Act 1977, the UK Bribery Act 2010 or any other similar applicable law (including any applicable Australian State or Territory laws), or engaged in any conduct that would have violated the same had such conduct occurred in the jurisdiction in which such laws apply.
20.2 The Customer acknowledges that:
(a) AVI personnel (including directors, officers, employees, agents and representatives) are not permitted to accept:
(i) gifts of more than token value;
(iii) excessive entertainment; or
(iv) other substantial favours, from any company or person that does business with, or seeks to do business with, AVI,
(b) AVI employees are not permitted to solicit gifts or other favours from any company or individual that does business with, or seeks to do business with, AVI; and
(c) entertainment of AVI personnel (including directors, officers, employees, agents and representatives) is only acceptable where it is of a reasonable nature such that AVI’s personnel (including directors, officers, employees, agents and representatives) can reciprocate, and the Customer represents, warrants and agrees that it will not offer to, or accept from, any AVI Personnel any gifts, entertainment or other favours that are, or would be, impermissible in accordance with any of clauses 20.2(a), (b) or (c).
20.3 Any breach of this clause 20 is a fundamental and material breach of these terms and conditions incapable of remedy.
21.1 A notice to be given either party (or an invoice to be issued by AVI) under these terms and conditions may be given or issued by:
(a) leaving it or posting it to the other party’s last notified address, and is taken as given at the time it is left or if posted, on the next business day after it is posted;
(b) sending it over the internet to the other party’s last notified email address, and (subject to any notification to the otherwise) is taken as given at the commencement of the next business day;
(c) sending it via facsimile to the other party’s last notified facsimile number and is taken as given when transmitted to the other party. A facsimile shall be regarded as legible unless notified within a reasonable time by the other party as otherwise.
22.1 The failure by AVI to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect AVI’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which AVI has its principal place of business and are subject to the jurisdiction of the courts in that state.
22.3 Subject to clause 14 AVI shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by AVI of these terms and conditions (alternatively AVI’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by AVI nor to withhold payment of any invoice because part of that invoice is in dispute.
22.5 AVI may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
22.6 The Customer agrees that AVI may amend these terms and conditions at any time. If AVI makes a change to these terms and conditions, then that change will take effect from the date on which AVI notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for AVI to provide Goods to the Customer.
22.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.