CONDITIONS OF CONTRACT
1. Definitions
1.1 “MAK Power” means MAK Power Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of MAK Power Pty Ltd.
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 MAK Power 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 “Price” means the Price payable for the Goods as agreed between MAK Power and the Client in accordance with clause 4 below.
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 MAK Power’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and MAK Power.
2.3 The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, MAK Power reserves the right to vary the Price with alternative Goods as per clause 4.2.
2.4 Notwithstanding clause 2.3 MAK Power also reverses the right at their discretion to introduce additional new Goods as part of the Goods to be supplied.
3. Change in Control
3.1 The Client shall give MAK Power 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 MAK Power as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At MAK Power’s sole discretion the Price shall be MAK Power’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 twenty eight (28) days.
4.2 MAK Power reserves the right to change the Price if a variation to MAK Power’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of increases to MAK Power in the cost of currency exchange rates fluctuations, increases in taxes, levies, materials and labour or where additional Services are required due to the discovery of hidden or unidentifiable difficulties including, but not limited to, limitations to accessing the site, hard rock barriers below the surface or iron reinforcing rods in concrete, obscured building defects, safety considerations, removal of hazardous materials, prerequisite work by any third party not being completed or hidden pipes and wiring in walls etc which are only discovered on commencement of the Services) will be charged for on the basis of MAK Power’s quotation and will be shown as variations on the invoice.
4.3 At MAK Power’s sole discretion a deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date determined by MAK Power, which will be:
(a) seven (7) days following the date of the invoice which is posted to the Client’s address or address for notices.
4.5 Payment may be made by cash, cheque, electronic/on-line banking, or by any other method as agreed to between the Client and MAK Power.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to MAK Power an amount equal to any GST MAK Power must pay for any supply by MAK Power under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery
5.1 Subject to clause 5.2 it is MAK Power’s responsibility to ensure that the Services start as soon as it is reasonably possible.
5.2 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that MAK Power claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond MAK Power’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify MAK Power that the site is ready.
5.3 Delivery (“Delivery”) of the Goods is taken to occur at the time that MAK Power (or MAK Power’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.4 At MAK Power’s sole discretion the cost of delivery is included in the Price.
5.5 MAK Power 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.
5.6 Any time or date given by MAK Power to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and MAK Power will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6. Risk
6.1 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.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, MAK Power is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by MAK Power is sufficient evidence of MAK Power’s rights to receive the insurance proceeds without the need for any person dealing with MAK Power to make further enquiries.
6.3 If the Client requests MAK Power to leave Goods outside MAK Power’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
6.4 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with the Australian Wiring standards.
6.5 The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roofing), MAK Power reasonably forms the opinion that the Client’s premises is not safe for the installation of Goods to proceed then MAK Power shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 5.2 above) until MAK Power is satisfied that it is safe for the installation to proceed.
6.6 Where the Client has supplied Goods for MAK Power to complete the Services, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the Goods. MAK Power shall not be responsible for any defects in the Goods, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of Goods supplied by the Client.
6.7 The Client acknowledges that MAK Power is only responsible for parts that are replaced by MAK Power, and in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify MAK Power against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
6.8 The Client further acknowledges that MAK Power accepts no responsibility for any power and data cabling which was not installed or run by MAK Power.
6.9 Prior to MAK Power commencing any work the Client must advise MAK Power of the precise location of all underground services on the site and clearly mark the same. Whilst MAK Power will take all care to avoid damage to any underground services the Client agrees to indemnify MAK Power 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.
7. Accuracy of Customer’s Plans and Measurements
7.1 MAK Power shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, MAK Power accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.2 In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or MAK Power places an order based on these measurements and quantities. MAK Power accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
8. Client’s Responsibilities
8.1 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 MAK Power against any costs incurred by MAK Power as a consequence of such discovery. Under no circumstances will MAK Power handle removal of asbestos product.
8.2 The Client must have all areas clean and clear to enable scheduled Services to be completed in accordance with the schedule of installation.
8.3 The Client is supply power to within 8 metres of the project.
8.4 MAK Power 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.
8.5 The Client will fully disclose any information that may affect the installation procedures of MAK Power.
8.6 It is the responsibility of the Client to provide and have erected scaffolding or similar, to enable the Services to be undertaken (where in MAK Power’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
8.7 It is further agreed that the Client will supply temporary lighting, toilet, eating and first aid facilities if required.
9. Access
9.1 The Client shall ensure that MAK Power has clear and free access to the work site at all times to enable them to undertake the Services. MAK Power 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 MAK Power.
10. Compliance with Laws
10.1 The Client and MAK Power 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.
10.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
10.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation
11. Title
11.1 MAK Power and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid MAK Power all amounts owing to MAK Power; and
(b) the Client has met all of its other obligations to MAK Power.
11.2 Receipt by MAK Power of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
11.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 11.1 that the Client is only a bailee of the Goods and must return the Goods to MAK Power on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for MAK Power and must pay to MAK Power 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 MAK Power and must pay or deliver the proceeds to MAK Power on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of MAK Power and must sell, dispose of or return the resulting product to MAK Power as it so directs.
(e) the Client irrevocably authorises MAK Power to enter any premises where MAK Power believes the Goods are kept and recover possession of the Goods.
(f) MAK Power 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 MAK Power.
(h) MAK Power may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
12. Security and Charge
12.1 In consideration of MAK Power 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).
12.2 The Client indemnifies MAK Power from and against all MAK Power’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising MAK Power’s rights under this clause.
12.3 The Client irrevocably appoints MAK Power and each director of MAK Power as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify MAK Power in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow MAK Power to inspect the Goods.
13.2 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).
13.3 MAK Power acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, MAK Power makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. MAK Power’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, MAK Power’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If MAK Power is required to replace the Goods under this clause or the CCA, but is unable to do so, MAK Power may refund any money the Client has paid for the Goods.
13.7 If the Client is not a consumer within the meaning of the CCA, MAK Power’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by MAK Power at MAK Power’s sole discretion;
(b) limited to any warranty to which MAK Power is entitled, if MAK Power did not manufacture the Goods;
(c) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 13.1; and
(b) MAK Power 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.
13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, MAK Power shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by MAK Power;
(e) fair wear and tear, any accident, or act of God.
13.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by MAK Power as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that MAK Power has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 13.10.
13.11 MAK Power may in its absolute discretion accept non-defective Goods for return in which case MAK Power may require the Client to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.
13.12 Notwithstanding anything contained in this clause if MAK Power is required by a law to accept a return then MAK Power will only accept a return on the conditions imposed by that law.
14. Intellectual Property
14.1 Where MAK Power has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of MAK Power.
14.2 The Client warrants that all designs, specifications or instructions given to MAK Power will not cause MAK Power to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify MAK Power against any action taken by a third party against MAK Power in respect of any such infringement.
14.3 The Client agrees that MAK Power may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which MAK Power has created for the Client.
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 MAK Power’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes MAK Power any money the Client shall indemnify MAK Power from and against all costs and disbursements incurred by MAK Power in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, MAK Power’s contract default fee, and bank dishonour fees).
15.3 Without prejudice to any other remedies MAK Power may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions MAK Power may suspend or terminate the supply of Goods to the Client. MAK Power will not be liable to the Client for any loss or damage the Client suffers because MAK Power has exercised its rights under this clause.
15.4 Without prejudice to MAK Power’s other remedies at law MAK Power shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to MAK Power shall, whether or not due for payment, become immediately payable if:
(a) any money payable to MAK Power becomes overdue, or in MAK Power’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16. Cancellation
16.1 MAK Power may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice MAK Power shall repay to the Client any money paid by the Client for the Goods. MAK Power shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by MAK Power as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 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.
17. Privacy Act 1988
17.1 The Client agrees for MAK Power to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by MAK Power.
17.2 The Client agrees that MAK Power may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
17.3 The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.4 The Client consents to MAK Power being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.5 The Client agrees that personal credit information provided may be used and retained by MAK Power for the following purposes (and for other purposes as shall be agreed between the Client and MAK Power or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by MAK Power, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
17.6 MAK Power may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.7 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that MAK Power is a current credit provider to the Client;
(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 Client’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 MAK Power, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by MAK Power has been paid or otherwise discharged.
18. General
18.1 The failure by MAK Power to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect MAK Power’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.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia in which MAK Power has its principal place of business, and are subject to the jurisdiction of the Perth Courts in Western Australia.
18.3 Subject to clause 13 MAK Power 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 MAK Power of these terms and conditions (alternatively MAK Power’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
18.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by MAK Power nor to withhold payment of any invoice because part of that invoice is in dispute.
18.5 MAK Power may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.6 The Client agrees that MAK Power may amend these terms and conditions at any time. If MAK Power makes a change to these terms and conditions, then that change will take effect from the date on which MAK Power notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for MAK Power to provide Goods to the Client.
18.7 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.
18.8 The Client 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.
1.1 “MAK Power” means MAK Power Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of MAK Power Pty Ltd.
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 MAK Power 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 “Price” means the Price payable for the Goods as agreed between MAK Power and the Client in accordance with clause 4 below.
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 MAK Power’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and MAK Power.
2.3 The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, MAK Power reserves the right to vary the Price with alternative Goods as per clause 4.2.
2.4 Notwithstanding clause 2.3 MAK Power also reverses the right at their discretion to introduce additional new Goods as part of the Goods to be supplied.
3. Change in Control
3.1 The Client shall give MAK Power 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 MAK Power as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At MAK Power’s sole discretion the Price shall be MAK Power’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 twenty eight (28) days.
4.2 MAK Power reserves the right to change the Price if a variation to MAK Power’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of increases to MAK Power in the cost of currency exchange rates fluctuations, increases in taxes, levies, materials and labour or where additional Services are required due to the discovery of hidden or unidentifiable difficulties including, but not limited to, limitations to accessing the site, hard rock barriers below the surface or iron reinforcing rods in concrete, obscured building defects, safety considerations, removal of hazardous materials, prerequisite work by any third party not being completed or hidden pipes and wiring in walls etc which are only discovered on commencement of the Services) will be charged for on the basis of MAK Power’s quotation and will be shown as variations on the invoice.
4.3 At MAK Power’s sole discretion a deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date determined by MAK Power, which will be:
(a) seven (7) days following the date of the invoice which is posted to the Client’s address or address for notices.
4.5 Payment may be made by cash, cheque, electronic/on-line banking, or by any other method as agreed to between the Client and MAK Power.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to MAK Power an amount equal to any GST MAK Power must pay for any supply by MAK Power under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery
5.1 Subject to clause 5.2 it is MAK Power’s responsibility to ensure that the Services start as soon as it is reasonably possible.
5.2 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that MAK Power claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond MAK Power’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify MAK Power that the site is ready.
5.3 Delivery (“Delivery”) of the Goods is taken to occur at the time that MAK Power (or MAK Power’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.4 At MAK Power’s sole discretion the cost of delivery is included in the Price.
5.5 MAK Power 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.
5.6 Any time or date given by MAK Power to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and MAK Power will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6. Risk
6.1 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.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, MAK Power is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by MAK Power is sufficient evidence of MAK Power’s rights to receive the insurance proceeds without the need for any person dealing with MAK Power to make further enquiries.
6.3 If the Client requests MAK Power to leave Goods outside MAK Power’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
6.4 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with the Australian Wiring standards.
6.5 The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roofing), MAK Power reasonably forms the opinion that the Client’s premises is not safe for the installation of Goods to proceed then MAK Power shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 5.2 above) until MAK Power is satisfied that it is safe for the installation to proceed.
6.6 Where the Client has supplied Goods for MAK Power to complete the Services, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the Goods. MAK Power shall not be responsible for any defects in the Goods, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of Goods supplied by the Client.
6.7 The Client acknowledges that MAK Power is only responsible for parts that are replaced by MAK Power, and in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify MAK Power against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
6.8 The Client further acknowledges that MAK Power accepts no responsibility for any power and data cabling which was not installed or run by MAK Power.
6.9 Prior to MAK Power commencing any work the Client must advise MAK Power of the precise location of all underground services on the site and clearly mark the same. Whilst MAK Power will take all care to avoid damage to any underground services the Client agrees to indemnify MAK Power 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.
7. Accuracy of Customer’s Plans and Measurements
7.1 MAK Power shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, MAK Power accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.2 In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or MAK Power places an order based on these measurements and quantities. MAK Power accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
8. Client’s Responsibilities
8.1 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 MAK Power against any costs incurred by MAK Power as a consequence of such discovery. Under no circumstances will MAK Power handle removal of asbestos product.
8.2 The Client must have all areas clean and clear to enable scheduled Services to be completed in accordance with the schedule of installation.
8.3 The Client is supply power to within 8 metres of the project.
8.4 MAK Power 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.
8.5 The Client will fully disclose any information that may affect the installation procedures of MAK Power.
8.6 It is the responsibility of the Client to provide and have erected scaffolding or similar, to enable the Services to be undertaken (where in MAK Power’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
8.7 It is further agreed that the Client will supply temporary lighting, toilet, eating and first aid facilities if required.
9. Access
9.1 The Client shall ensure that MAK Power has clear and free access to the work site at all times to enable them to undertake the Services. MAK Power 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 MAK Power.
10. Compliance with Laws
10.1 The Client and MAK Power 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.
10.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
10.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation
11. Title
11.1 MAK Power and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid MAK Power all amounts owing to MAK Power; and
(b) the Client has met all of its other obligations to MAK Power.
11.2 Receipt by MAK Power of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
11.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 11.1 that the Client is only a bailee of the Goods and must return the Goods to MAK Power on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for MAK Power and must pay to MAK Power 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 MAK Power and must pay or deliver the proceeds to MAK Power on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of MAK Power and must sell, dispose of or return the resulting product to MAK Power as it so directs.
(e) the Client irrevocably authorises MAK Power to enter any premises where MAK Power believes the Goods are kept and recover possession of the Goods.
(f) MAK Power 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 MAK Power.
(h) MAK Power may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
12. Security and Charge
12.1 In consideration of MAK Power 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).
12.2 The Client indemnifies MAK Power from and against all MAK Power’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising MAK Power’s rights under this clause.
12.3 The Client irrevocably appoints MAK Power and each director of MAK Power as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify MAK Power in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow MAK Power to inspect the Goods.
13.2 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).
13.3 MAK Power acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, MAK Power makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. MAK Power’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, MAK Power’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If MAK Power is required to replace the Goods under this clause or the CCA, but is unable to do so, MAK Power may refund any money the Client has paid for the Goods.
13.7 If the Client is not a consumer within the meaning of the CCA, MAK Power’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by MAK Power at MAK Power’s sole discretion;
(b) limited to any warranty to which MAK Power is entitled, if MAK Power did not manufacture the Goods;
(c) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 13.1; and
(b) MAK Power 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.
13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, MAK Power shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by MAK Power;
(e) fair wear and tear, any accident, or act of God.
13.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by MAK Power as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that MAK Power has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 13.10.
13.11 MAK Power may in its absolute discretion accept non-defective Goods for return in which case MAK Power may require the Client to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.
13.12 Notwithstanding anything contained in this clause if MAK Power is required by a law to accept a return then MAK Power will only accept a return on the conditions imposed by that law.
14. Intellectual Property
14.1 Where MAK Power has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of MAK Power.
14.2 The Client warrants that all designs, specifications or instructions given to MAK Power will not cause MAK Power to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify MAK Power against any action taken by a third party against MAK Power in respect of any such infringement.
14.3 The Client agrees that MAK Power may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which MAK Power has created for the Client.
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 MAK Power’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes MAK Power any money the Client shall indemnify MAK Power from and against all costs and disbursements incurred by MAK Power in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, MAK Power’s contract default fee, and bank dishonour fees).
15.3 Without prejudice to any other remedies MAK Power may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions MAK Power may suspend or terminate the supply of Goods to the Client. MAK Power will not be liable to the Client for any loss or damage the Client suffers because MAK Power has exercised its rights under this clause.
15.4 Without prejudice to MAK Power’s other remedies at law MAK Power shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to MAK Power shall, whether or not due for payment, become immediately payable if:
(a) any money payable to MAK Power becomes overdue, or in MAK Power’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16. Cancellation
16.1 MAK Power may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice MAK Power shall repay to the Client any money paid by the Client for the Goods. MAK Power shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by MAK Power as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 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.
17. Privacy Act 1988
17.1 The Client agrees for MAK Power to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by MAK Power.
17.2 The Client agrees that MAK Power may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
17.3 The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.4 The Client consents to MAK Power being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.5 The Client agrees that personal credit information provided may be used and retained by MAK Power for the following purposes (and for other purposes as shall be agreed between the Client and MAK Power or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by MAK Power, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
17.6 MAK Power may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.7 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that MAK Power is a current credit provider to the Client;
(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 Client’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 MAK Power, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by MAK Power has been paid or otherwise discharged.
18. General
18.1 The failure by MAK Power to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect MAK Power’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.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia in which MAK Power has its principal place of business, and are subject to the jurisdiction of the Perth Courts in Western Australia.
18.3 Subject to clause 13 MAK Power 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 MAK Power of these terms and conditions (alternatively MAK Power’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
18.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by MAK Power nor to withhold payment of any invoice because part of that invoice is in dispute.
18.5 MAK Power may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.6 The Client agrees that MAK Power may amend these terms and conditions at any time. If MAK Power makes a change to these terms and conditions, then that change will take effect from the date on which MAK Power notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for MAK Power to provide Goods to the Client.
18.7 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.
18.8 The Client 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.