Doing Business With Us
Indratel Australia Pty Ltd – Terms & Conditions of Trade
Quick Reference Guide
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Indratel Australia” means Indratel Australia Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Indratel Australia Pty Ltd.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Indratel Australia to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Sub-Contractors” means any person or persons engaged by Indratel Australia to provide specialised works on behalf of the Customer.
1.5 “Documentation” means any documents, designs, drawings, plans or other documentation supplied, consumed, created or deposited incidentally by Indratel Australia in the course of it conducting, or supplying to the Customer, any Services.
1.6 “IP” means all present and future intellectual and industrial property, whether conferred by statute, at common law, or in equity (including, without limitation, patents, designs, copyright, trademarks, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information and pricing details), whether registered or not, or capable of being registered, and includes any application or right to apply for registration of any of these rights.
1.7 “Services” means all Services (including consultation, manufacturing and/or installation services) supplied to the Customer by Indratel Australia.
1.8 “Goods” means all materials, components, and/or goods supplied by Indratel Australia to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Services’ or ‘Goods’ shall be interchangeable for the other).
1.9 “Project” means the Project as specified in the Scope of Services and/or Fee Proposal that will read in conjunction with this Contract for which the Services are provided by Indratel Australia to the Customer.
1.10 “Agreement” means this Agreement including any Fee Proposal, schedule and any other agreement expressed to be supplemental to this Agreement and all other amendments to such a document.
1.11 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.12 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when making enquiries from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.
1.13 “Fee” means the price payable (plus any GST where applicable) for the Services as agreed between Indratel Australia and the Customer in accordance with clause 8 of this contract.
1.14 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
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.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Indratel Australia and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, Indratel Australia reserves the right to refuse Delivery.
2.6 The Customer acknowledges and accepts that:
(a) the Services or Documentation have been prepared on the information and data available at this time (including, but not limited to, by-laws or other safety criteria, etc.). Should any of these factors change, then Indratel Australia cannot guarantee that the recommendations and/or estimated outcomes will still apply; and
(b) Indratel Australia shall be entitled to rely on the accuracy of any drawings, specifications and other information provided by the Customer or service authorities. In the event that any of this information provided by the Customer is inaccurate, Indratel Australia accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate site plans, specifications or other information; and
(c) should the information supplied by the Customer be inaccurate and require Indratel Australia to rework the content of any Documentation then all additional costs incurred by Indratel Australia shall be charged as a variation as per clause 8.2.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (New South Wales), the Electronic Transactions (Victoria) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (Tasmania), or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that Indratel Australia shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s)
(a) resulting from an inadvertent mistake made by Indratel Australia in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Indratel Australia in respect of the Services. 3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Indratel Australia; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Customer shall give Indratel Australia 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, change of trustees, or business practice). The Customer shall be liable for any loss incurred by Indratel Australia as a result of the Customer’s failure to comply with this clause.
6. Indratel Australia’s Obligations
6.1 Indratel Australia warrants that it has the necessary skills, competence, and experience to undertake and complete the Services and shall at all times apply such skills, competence and experience in performance of the Services.
6.2 Indratel Australia accepts that it shall be appointed, and shall be entitled to act, as the Customer’s agent for the purposes of the Project for the term of this Agreement.
6.3 Indratel Australia will maintain current professional indemnity insurance.
6.4 If the Customer shall instruct Indratel Australia to change the scope of the Services, the Consultant shall promptly notify the Customer in writing of any variation in Fees pursuant to clause 8.2 of this Agreement. The Customer agrees that additional fees may be payable.
6.5 Indratel Australia shall keep full records of the Services provided in the manner determined by Indratel Australia, and shall provide to the Customer with updates with respect of the Services at the time and in the manner determined by Indratel Australia in the Consultant’s absolute discretion.
7. Customer’s Obligations
7.1 The Customer appoints Indratel Australia as its agent for the purposes of the Project for the term of this Agreement.
7.2 The Customer shall provide to Indratel Australia all documentation and other information as and when requested. The Customer acknowledges that the ability of Indratel Australia to provide the Services is dependent upon the Customer complying with this clause.
7.3 The Customer acknowledges that if their requirements change during the term of the Contract, the Fee may be subject to change as per clause 8.2.
8. Fee and Payment
8.1 At Indratel Australia’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by Indratel Australia to the Customer; or (b) Indratel Australia’s quoted price (subject to clause 8.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
8.2 Indratel Australia reserves the right to change the Fee:
(a) in the event of a variation to the Fee Proposal. In the event the Customer requests changes after commencement of the Services then Indratel Australia (at its sole discretion) shall be entitled not only to vary the Fee but the term of the Agreement. All variations shall be in writing, detailing the reason for the variation, the impact on the Fee, term and/or the scope of the Agreement and shall be signed by both parties; or (b) to include any Reimbursable Expenses as per clause 9; or
(c) where fluctuations in the currency exchange rate have occurred; and
(d) where additional costs are incurred by Indratel Australia due to unexpected delays, or receipt of approvals or certificates, etc.
8.3 Variations will be detailed in writing and the value of such will be by agreement of both parties. If the value for such variation has not been agreed between the parties, the Consultant shall be entitled to be paid a reasonable amount for such variation (charged for on the basis of the consultant’s quotation), provided the work associated therewith has been completed by the Consultant. Payment for all variations must be made in full at their time of completion. The Customer shall not, without the prior written consent of the Consultant, have any variation work carried out by any other party during the performance of the Services by the Consultant.
8.4 At Indratel Australia’s sole discretion, a deposit may be required.
8.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Indratel Australia, which may be:
(a) by way of instalments/progress payments in accordance with Indratel Australia’s payment schedule;
(b) seven (7) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by Indratel Australia.
8.6 Payment may be made by cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Indratel Australia.
8.7 Indratel Australia may in its discretion allocate any payment received from the Customer towards any invoice that Indratel Australia determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Indratel Australia may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Indratel Australia, payment will be deemed to be allocated in such manner as preserves the maximum value of Indratel Australia’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
8.8 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 Indratel Australia nor to withhold payment of any invoice because part of that invoice is in dispute.
8.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Indratel Australia an amount equal to any GST Indratel Australia must pay for any supply by Indratel Australia under this or any other agreement for the sale of the Goods. 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.
9. Reimbursable Expenses
9.1 Indratel Australia shall be reimbursed for all expenses properly incurred in connection with the provision of the Services, except where such expenses are specifically stated in writing by Indratel Australia as being included in the Fee. All reimbursable expenses (e.g. travel, communications, couriers, etc.) will be charged as per the Proposal/quotaton or otherwise at the cost involved (excluding GST) to Indratel Australia, plus any applicable administration fee.
10. Delivery of the Services
10.1 Delivery (“Delivery”) of the Goods/Services is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Indratel Australia’s address; or
(b) Indratel Australia (or Indratel Australia’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
10.2 At Indratel Australia’s sole discretion, the cost of Delivery is in addition to the Price.
10.3 Provision of the Services to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this contract.
10.4 Indratel Australia may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
10.5 Any time specified by Indratel Australia for Delivery of the Goods/Services is an estimate only. The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. Indratel Australia will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event that the Customer is unable to take Delivery of the Goods as arranged then Indratel Australia shall be entitled to charge a reasonable fee for redelivery and/or storage. 10.6 If Indratel Australia retains ownership of the Goods under clause 14 then:
(a) where Indratel Australia is supplying Goods only, all risk for the Goods shall immediately pass to the Customer on delivery and the Customer must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that the Goods are delivered by Indratel Australia or Indratel Australia’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address);
(b) where Indratel Australia is to both supply and install Goods then Indratel Australia shall maintain appropriate insurances until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Customer. 10.7 Notwithstanding the provisions of clause 1.1(a) or if the Customer fails to comply with that clause, if any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Indratel Australia is entitled to receive compensation or all insurance proceeds payable for the Goods. The production of these terms and conditions by Indratel Australia is sufficient evidence of Indratel Australia’s rights to receive the insurance proceeds without the need for any person dealing with Indratel Australia to make further enquiries.
10.8 It shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Customer’s expense.
11. Extension of Contract
Period 11.1 Indratel Australia shall as per clause 8.2(a) above be entitled to claim an extension to the term of the Project in the event of delays resulting from any matter whatsoever which is not entirely under the control of Indratel Australia. These matters shall include, but are not limited to delays caused by:
(c) response(s) to information request(s) made by Indratel Australia to the Customer not being available when required;
(d) approval authorities response times;
(e) information from Sub-Consultants;
(f) changes to the design brief being requested by the Customer;
(g) any other variation to this Contract.
11.2 In the event that there is a break in the continuity of Services being provided by Indratel Australia due to the Customer’s instructions or all Services are suspended by Indratel Australia pursuant to overdue payments, then Fees for Services completed at the time of such a break or suspension shall be the percentage due for completed Services of the current stage, plus all Fees due up to date of such a break or suspension plus all Fees, wages and expenses reasonably incurred as a result of such a break or suspension, unless otherwise agreed.
12. Compliance with Laws
12.1 The Customer and the Consultant agree that both parties shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the provision of Services by the Consultant, including any occupational health and safety laws any other relevant safety standards or legislation.
12.2 The Customer shall obtain (at the expense of the Customer) all licences, approvals and/or certificates that may be required to enable the Consultant to provide the Services.
13. Nominated Sub-Contractors
13.1 Indratel Australia shall be entitled to engage individuals on a subcontract or consultancy basis, whether or not operating under corporate structure, to assist in the provision of the Services pursuant to the contract.
13.2 Indratel Australia shall remain liable for the performance of all obligations under these Terms and Conditions including the Services that are subject of a subcontract.
13.3 The Customer agrees and understands that they have no authority to give any instruction to any of Indratel Australia’s sub-contractors without the authority of Indratel Australia.
14.1 Indratel Australia and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Indratel Australia all amounts owing to Indratel Australia; and
(b) the Customer has met all of its other obligations to Indratel Australia.
14.2 Receipt by Indratel Australia of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised. 14.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 14.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to Indratel Australia on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Indratel Australia and must pay to Indratel Australia 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 Indratel Australia and must pay or deliver the proceeds to Indratel Australia 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 Indratel Australia and must sell, dispose of or return the resulting product to Indratel Australia as it so directs;
(e) the Customer irrevocably authorises Indratel Australia to enter any premises where Indratel Australia believes the Goods are kept and recover possession of the Goods;
(f) Indratel Australia 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 Indratel Australia;
(h) Indratel Australia may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
15. Personal Property Securities Act 2009 (“PPSA”)
15.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
15.2 Upon assenting to these terms and conditions in writing the 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 and/or collateral (account) – being a monetary obligation of the Customer to Indratel Australia for Services – that have previously been supplied and that will be supplied in the future by Indratel Australia to the Customer.
15.3 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 Indratel Australia may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 15.3(a)(i) or 15.3(a)(ii);
(b) indemnify, and upon demand reimburse, Indratel Australia 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 Indratel Australia;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Indratel Australia;
(e) immediately advise Indratel Australia 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.
15.4 Indratel Australia 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.
15.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
15.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
15.7 Unless otherwise agreed to in writing by Indratel Australia, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA. 15.8 The Customer must unconditionally ratify any actions taken by Indratel Australia under clauses 15.3 to 15.5.
15.9 Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
16. Use of Reports and Advice
16.1 Any advice that Indratel Australia gives to the Customer, its employees or agents is for the Customer’s exclusive use and must be used only for the purpose described in the scope of Services.
16.2 Unless Indratel Australia gives the Customer prior written consent, the advice:
(a) must not be used or disclosed for any other purpose, referred to in any document or made available to any other person, except the Customer’s lawyers or other professional advisor assisting in the Services; and
(b) may not be relied upon by any other party other than the Customer.
16.3 Indratel Australia is not responsible to any other party other than the Customer, who is provided with or obtains a copy of Indratel Australia’s advice.
16.4 Indratel Australia’s advice may, on occasion, be given to the Customer in draft form or orally only on the basis that the Customer may not rely on advice in that form. Accordingly, Indratel Australia shall not be responsible if the Customer or any other party relies on the advice or chooses to act, or refrains from acting, on the basis of any draft advice or oral comments or advice.
16.5 The Customer acknowledges that the signed copy of Indratel Australia’s final Documentation is the definitive version.
17. Security and Charge
17.1 In consideration of Indratel Australia agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
17.2 The Customer indemnifies Indratel Australia from and against all Indratel Australia’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Indratel Australia’s rights under this clause.
17.3 The Customer irrevocably appoints Indratel Australia and each director of Indratel Australia as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Customer’s behalf.
18. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
18.1 The Customer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify Indratel Australia 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 Indratel Australia to inspect the Goods.
18.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
18.3 Indratel Australia acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
18.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Indratel Australia makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Indratel Australia’s liability in respect of these warranties is limited to the fullest extent permitted by law.
18.5 If the Customer is a consumer within the meaning of the CCA, Indratel Australia’s liability is limited to the extent permitted by section 64A of Schedule 2.
18.6 If Indratel Australia is required to replace the Goods under this clause or the CCA, but is unable to do so, Indratel Australia may refund any money the Customer has paid for the Goods.
18.7 If the Customer is not a consumer within the meaning of the CCA, Indratel Australia’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 Customer by Indratel Australia at Indratel Australia’s sole discretion;
(b) limited to any warranty to which Indratel Australia is entitled, if Indratel Australia did not manufacture the Goods;
(c) otherwise negated absolutely. 18.8 Subject to this clause 18, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 18.1; and
(b) Indratel Australia 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. 18.9 Notwithstanding clauses 18.1 to 18.8 but subject to the CCA, Indratel Australia 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 Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer 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 Customer failing to follow any instructions or guidelines provided by Indratel Australia;
(e) fair wear and tear, any accident, or act of God.
18.10 Indratel Australia will not accept non defective Goods for return if they have been manufactured or programmed to specifications as required by the Customer. Under exceptional circumstances, and with mutual agreement, Indratel Australia may agree to modify or reprogram this equipment, on behalf of the Customer for resale purposes for a fee.
19. Confidentiality and Intellectual Property
19.1 Both the Customer and Indratel Australia agree to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party. 19.2 Exceptions to clause 19.1 will be disclosures to legal advisers, disclosures required by law, and disclosures necessary for the proper performance of the Services.
19.3 The Customer warrants that all designs, specifications or instructions given to Indratel Australia will not cause Indratel Australia to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Indratel Australia against any action taken by a third party against Indratel Australia in respect of any such infringement.
19.4 Indratel Australia may photograph, video or record by any and all means the Project for the duration thereof, and upon completion, for Indratel Australia’s own use and for use in exhibitions, or award competitions, or publication in journals.
19.5 If the Customer publicises or permits the publication of the Project, Indratel Australia must be given full credit for its role in the Project.
20. Default and Consequences of Default
20.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Indratel Australia’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Customer owes Indratel Australia any money the Customer shall indemnify Indratel Australia from and against all costs and disbursements incurred by Indratel Australia in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Indratel Australia’s contract default fee, and bank dishonour fees).
20.3 Further to any other rights or remedies Indratel Australia may have under this Contract, if a Customer has made payment to Indratel Australia, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Indratel Australia under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
20.4 Without prejudice to Indratel Australia’s other remedies at law Indratel Australia shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Indratel Australia shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Indratel Australia becomes overdue, or in Indratel Australia’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Indratel Australia;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
21.1 Without prejudice to any other remedies Indratel Australia may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Indratel Australia may suspend or terminate the supply of Goods to the Customer. Indratel Australia will not be liable to the Customer for any loss or damage the Customer suffers because Indratel Australia has exercised its rights under this clause.
21.2 Indratel Australia 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 Customer. On giving such notice Indratel Australia shall repay to the Customer any money paid by the Customer for the Goods. Indratel Australia shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3 In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Indratel Australia as a direct result of the cancellation (including, but not limited to, any loss of profits).
21.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
22.1 All emails, documents, images or other recorded information held or used by Indratel Australia is Personal Information, as defined and referred to in clause 22.3, and therefore considered Confidential Information. Indratel Australia acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Indratel Australia acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by Indratel Australia that may result in serious harm to the Customer, Indratel Australia will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law. 22.2 Notwithstanding clause 22.1, privacy limitations will extend to Indratel Australia in respect of Cookies where transactions for purchases/orders transpire directly from Indratel Australia’s website. Indratel Australia agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Indratel Australia when Indratel Australia sends an email to the Customer, so Indratel Australia may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via Indratel Australia’s website.
22.3 The Customer agrees for Indratel Australia to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by Indratel Australia.
22.4 The Customer agrees that Indratel Australia may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application 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 this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
22.5 The Customer consents to Indratel Australia being given a consumer credit report to collect overdue payment on commercial credit.
22.6 The Customer agrees that personal credit information provided may be used and retained by Indratel Australia for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
22.7 Indratel Australia may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
22.8 The information given to the CRB may include: (a) Personal Information as outlined in 22.3 above;
(b) name of the credit provider and that Indratel Australia is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and Indratel Australia has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Indratel Australia, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
22.9 The Customer shall have the right to request (by e-mail) from Indratel Australia:
(a) a copy of the Personal Information about the Customer retained by Indratel Australia and the right to request that Indratel Australia correct any incorrect Personal Information; and
(b) that Indratel Australia does not disclose any Personal Information about the Customer for the purpose of direct marketing.
22.10 Indratel Australia will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
22.11 The Customer can make a privacy complaint by contacting Indratel Australia via e-mail. Indratel Australia will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
23. Liability Limitations
23.1 Except as is specified in clause 18 the liability limitations of Indratel Australia, it’s partners, associates, and employees shall exclude any indirect loss and/or expense (including, but not limited to, loss of profit, loss of business opportunity and payment of liquidated damages, etc.) suffered by the Customer arising out of a breach by Indratel Australia of these terms and conditions.
23.2 The maximum liability of Indratel Australia under this Contract shall at no time exceed the amount of Professional Indemnity insurance cover carried by Indratel Australia.
23.3 The Customer agrees to indemnify Indratel Australia, (including its partners, associates or employees) and any other person who may be sought to be made liable in excess of the limit of liability described in clause 23.1 in respect of any activity arising from, or connected with this Contract in respect of any claim of whatsoever kind, that may be made by any person and any costs and expenses that may be incurred by Indratel Australia.
23.4 The liability of Indratel Australia to the Customer shall expire twelve (12) months from the issue of the last invoice relevant to the particular project, unless in the meantime the Customer has made a claim in writing to Indratel Australia, specifying a negligent act, omission or statement said to have caused alleged loss or damage sustained or sustainable.
24. Service of Notices
24.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
24.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
25.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Indratel Australia may have notice of the Trust, the Customer covenants with Indratel Australia as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of Indratel Australia (Indratel Australia will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
26.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
26.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of Queensland in which Indratel Australia has its principal place of business, and are subject to the jurisdiction of the Brisbane courts in that state. 26.3 Subject to clause 18, Indratel Australia 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 Indratel Australia of these terms and conditions (alternatively Indratel Australia’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
26.4 Indratel Australia may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
26.5 The Customer cannot licence or assign without the written approval of Indratel Australia.
26.6 The Customer agrees that Indratel Australia may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Indratel Australia to provide Goods to the Customer.
26.7 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.
26.8 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.