Terms and conditions
These Terms and Conditions form part of the Quotation submitted by Atomic Industries Pty Ltd ACN 120 565 255 ATF The McClelland Family Trust to the Client named in the Quotation and if the Quotation is accepted by the Client, form part of the contract between the parties.
1. DEFINITIONS AND INTERPRETATION
In these Terms and Conditions, unless the context or subject matter otherwise requires:
“Atomic Industries” means Atomic Industries Australia Pty Ltd ACN 120 565 255 ATF The McClelland Family Trust, its successors and assigns or any person acting on behalf of and with the authority of Atomic Industries Australia Pty Ltd ATF The McClelland Family Trust T/A Atomic Electrical Contractors;
“Business Day” means a day, not being a Saturday, Sunday or gazetted public holiday, on which banks are open for commercial business at Brisbane and in the place or places where performance of a relevant obligation is or is required to take place;
“CCA” means the Competition and Consumer Act 2010 (Cth);
“Client” means the person requesting the Works as specified in the Quotation and any invoice, document or purchase order;
“Completion Date” means the date for the completion of the Works as agreed between the parties after receipt of the purchase order from the Client and before the Works commence or failing agreement, a completion date determined by Atomic Industries that is reasonable in all of the circumstances;
“Contract” means the contract to carry out the Works between the Client and Atomic Industries deemed to be entered into upon acceptance of the Quotation as referred to in clause 2.1 and which comprises the terms of the Quotation including the Terms and Conditions;
“Financing Change Statement” has the meaning given to it in the PPSA;
“Financing Statement” has the meaning given to it in the PPSA;
“GST” means a goods and services tax imposed under the GST Law;
“GST Amount” means an amount calculated by multiplying the consideration for a Taxable Supply by the GST rate, but in any event not more than the GST required to be paid in respect of that Taxable Supply;
“GST Invoice” means an invoice for the GST Amount, which must include all particulars required by the GST Law and any other information a party may reasonably require to enable it to obtain an input tax credit under the GST Law for the GST Amount;
“GST Law” has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or if that statute does not exist for any reason, means any statute imposing or relating to a GST and any regulation made pursuant to it and includes, where the context permits, any ATO ruling or determination;
“Materials” mean all materials and goods required to complete the Works including those specified in the Quotation;
“Notice Address” means in respect of a party:
(a) the address, facsimile number or email address specified in the Quotation for the party; and
(b) where a party gives notice to all other parties of another address, facsimile number or email address, the last address, facsimile number or email address so notified;
“Personal Property” has the meaning given to it in the PPSA;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“PPS Lease” has the meaning given to it in the PPSA;
“PPSR” means the Personal Property Securities Register established under section 147 of the PPSA;
“Purchase Money Security Interest” has the meaning given to it in the PPSA;
“Price” means the price payable by the Client to Atomic Industries for the Works as determined by clause 3.1 of these Terms and Conditions;
“Quotation” means the written quotation given by Atomic Industries to the Client which sets out the scope of the Works, the quoted price and any Special Conditions and includes the Terms and Conditions;
“Security Agreement” has the meaning given to it in the PPSA;
“Security Interest” has the meaning given to it in the PPSA;
“Services” mean the services to be performed by Atomic Industries as specified in the Quotation and any advice or recommendations incidental to those services;
“Site” means the location where the Works are to be performed as specified in the Quotation;
“Special Conditions” mean any special conditions that apply to the Quotation as set out in the Quotation;
“Taxable Supply” means any supply (as that term is defined in the GST Law) made by a party as a consequence of a transaction contemplated by the Terms and Conditions in respect of which the other party is or becomes liable to pay GST;
“Terms and Conditions” mean these terms and conditions;
“Variation” means to vary the Works by:
(a) providing additional Services and/or Materials;
(b) omitting any part of the Works; or
(c) changing the scope of the Works;
“Works” mean all works (including the provision of Services and supply of Materials) undertaken by Atomic Industries as described in the Quotation including Variations.
In the interpretation of these Terms and Conditions, unless the context or subject matter otherwise requires:
- singular includes plural and vice versa;
- any gender includes every gender;
- a reference to a person includes corporations, trusts, associations, partnerships, a government authority, and other legal entities, and where necessary, include successor bodies;
- references to writing include printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;
- references to signature and signing include due execution of a document by a corporation or other relevant entity;
- references to months mean calendar months;
- references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
- references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;
- headings are used for convenience only and are to be disregarded in the interpretation of these Terms and Conditions;
- where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning;
- each paragraph or sub-paragraph in a list is to be read independently from the others in the list;
- a reference to Terms and Conditions is also a reference to the Contract in the event that the Client accepts the Quotation as referred to in clause 2.1;
- a reference to Terms and Conditions or Contract is to those Terms and Conditions or Contract as amended, novated, supplemented or replaced from time to time; and
- a reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns.
2. FORMATION OF CONTRACT
- Acceptance on order
The Client is taken to have accepted and is immediately bound by the Quotation if the Client submits a purchase order for the Works to Atomic Industries. The Client and Atomic Industries will be deemed to have formed the Contract at that time.
- Amendments in writing
These Terms and Conditions may only be amended with Atomic Industries consent in writing.
- Electronic signatures
Electronic signatures will be deemed to be accepted by either party provided that the parties have complied with section 14 of the Electronic Transactions (Queensland) Act 2001 (Q) or any other applicable provisions of that Act or any Regulations referred to in that Act.
- Change in Control
The Client must give Atomic Industries 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, email address, or business practice). The Client will be liable for any loss incurred by Atomic Industries as a result of the Client’s failure to comply with this clause.
Representations, statements, conditions and agreements:
(a) will only be binding on Atomic Industries if made by a director or manager of Atomic Industries and if made in writing; and
(b) made by Atomic Industries employees, contractors, sub-contractors, agents or representatives will not be binding on Atomic Industries unless ratified by a director or manager of Atomic Industries.
- Joint and several liability
Where there is more than one Client specified in the Quotation:
(a) an obligation of the Client specified in these Terms and Conditions is a joint obligation of all of them and a several obligation of each of them including payment of the Price;
(b) a right given to the Client in these Terms and Conditions is a right given jointly and severally to each of them, and if exercised by one of them, is deemed to be exercised jointly; and
(c) a representation, warranty or undertaking made by the Client is made by each of them.
- Guarantee and indemnity
The Client has represented to Atomic Industries that it could pay the Price and perform its other obligations under the Quotation. If requested by Atomic Industries, the directors and/or principal shareholder of the Client must provide personal guarantees and indemnities in the form reasonably required by Atomic Industries.
3. PRICE AND PAYMENT
At Atomic Industries sole discretion, the Price will be:
- as indicated on any GST Invoice provided by Atomic Industries to the Client;
- determined as at the date the Works are undertaken according to Atomic Industries then current price list; or
- Atomic Industries quoted price as specified in the Quotation provided that the Client accepts the Quotation in the manner specified in clause 2.1 within the period stated in the Quotation or if no such period is stated, within thirty (30) days.
If the Special Conditions require the Client to pay a deposit to Atomic Industries, the deposit must be paid prior to commencement of the Works and the deposit will be non-refundable.
The Price will be payable by the Client to Atomic Industries:
- at the times determined by Atomic Industries, which may be:
(i) in accordance with the payment terms set out in the Special Conditions;
(ii) within 30 days of Atomic Industries giving progress payment claims (including a final payment claim on completion of the Works) in the form of a GST Invoice to the Client which may be at such intervals as determined by Atomic Industries;
(iii) within the period or by the date specified on any GST Invoice issued by Atomic Industries as being the date for payment or if no period or date for payment is stated, within seven days of Atomic Industries giving the GST Invoice to the Client;
(iv) completion of the Works; and
- by cash, cheque, bank cheque, direct credit or by any other method as agreed to between the Client and Atomic Industries.
Unless otherwise stated the Price does not include the GST Amount. In addition to the Price the Client must pay to Atomic Industries an amount equal to any GST Amount that Atomic Industries must pay for any Taxable Supply by Atomic Industries under these Terms and Conditions. The Client must pay the GST Amount, without deduction or set from 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.
4. PERFORMANCE OF WORKS
- Atomic Industries will undertake and perform the Works for the Client in consideration of the Client paying the Price to Atomic Industries, subject to the provisions of these Terms and Conditions.
- Atomic Industries will undertake and perform the Works at the Site.
- Atomic Industries will use reasonable endeavours to complete the Works by the Completion Date.
- Atomic Industries may perform the Works in separate instalments. Each separate instalment will be invoiced and paid in accordance with the provisions in these Terms and Conditions.
- The Client must obtain all licences and approvals that may be required for the Works at the expense of the Client and before the Works commence.
- In the event that the Client fails to make the Site available to Atomic Industries at the pre-arranged time or fails to comply with paragraph (e) of this clause, Atomic Industries reserves the right to charge the Client for any costs incurred as a result of the Client’s failure, including, but not limited to, any loss of profits.
- The Services will be performed by the employees, contractors, sub-contractors or agents that Atomic Industries may choose as the most appropriate to carry out the Services.
- The Quotation is based on:
(i) any excavation required to perform the Works being in soil or clay and free of rock. The Client acknowledges that should it be necessary for Atomic Industries to excavate in other material including but not limited to rock and shale, then the Client will pay a reasonable extra price to Atomic Industries for the extra works involved; and
(ii) Atomic Industries being permitted to excavate by machine for the installation of any underground electrical services as are part of the Works. If the Client requires Atomic Industries to excavate by hand then the Client will pay a reasonable extra price to Atomic Industries for this additional work.
- Unless otherwise agreed in writing by the parties, Atomic Industries responsibilities in respect of commissioning the Works are limited to proving conformance of the Works with any plans, specifications and other information provided by the Client.
- Delivery of Materials
- Delivery of the Materials is taken to occur at the time that Atomic Industries (or Atomic Industries nominated carrier) delivers the Materials to the Site, even if the Client is not present at the Site at that time.
- The Client must take delivery by receipt or collection of the Materials whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Materials as arranged then Atomic Industries will be entitled to charge a reasonable fee for redelivery and/or storage of the Materials in addition to the Price.
- Atomic Industries does not warrant the quality or performance of any Material supplied or installed by it.
- It is the Client’s responsibility to establish the warranty relationship with the manufacturer of the Materials by ensuring that the warranty cards or other registration requirements of the manufacturer of any Materials supplied or installed by Atomic Industries are complied with by the Client.
- Extension of time
- The Works commencement date will be put back and/or the Completion Date extended by whatever time is reasonable in the event that Atomic Industries claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Atomic Industries control, including but not limited to any failure by the Client to:
(i) make a selection;
(ii) have the Site ready for the Works and to notify Atomic Industries that the Site is ready; or
(iii) obtain all licences and approvals as referred to in clause 4.1(e) and to notify Atomic Industries that they have been obtained,
or due to an event referred to in clause 19.7.
- Any time or date given by Atomic Industries to the Client is an estimate only. The Client must still accept delivery of the Materials and performance of the Services even if late and Atomic Industries will not be liable for any loss or damage incurred by the Client as a result of the delivery or performance of the Works being late.
- Where the Works commencement date or Completion Date has been extended under this clause 4.3, the Client will pay to Atomic Industries such extra costs as are necessarily incurred by Atomic Industries due to the delay (allowing a reasonable allowance for profit margins) and any loss of profits.
- If any cause referred to in paragraph (a) of this clause continues for more than six months, either party may by written notice terminate the Contract. The termination of the Contract will not affect the rights and obligations of either party which accrued prior to such termination.
- Variations requested by Client
The Client must request any Variation by written notice to Atomic Industries.
- Variations requested by Atomic Industries
If Atomic Industries requests any Variation, it will provide written notice to the Client of:
- the reason for the Variation;
- the full description of the Variation; and
- the effect any Variation will have on the Quotation or Contract, including but not limited to the Price, the Completion Date and whether further permits or authorisations are required.
- Acceptance by Client
Other than for the Variations referred to in clauses 5.4 and 5.5, Atomic Industries will obtain the written acceptance of the Client to the Variations and the effect the Variations will have on the Contract, including but not limited to the Price, the Completion Date and whether further permits or authorisations are required (“Variation Claim”) before commencing the works associated with the Variations. The Client agrees that it will respond to Atomic Industries Variation Claim reasonably and promptly. If the Client fails to respond or fails to provide a reasonable explanation for not accepting the Variation Claim within five Business Days of receiving it, then the Client will be deemed to have accepted the Variation Claim and the Contract will be varied accordingly.
- Variations beyond the control of Atomic Industries
- unforeseeable problems with the Site which are only revealed when undertaking the Works (including, but not limited to, poor weather conditions, limitations on accessing the Site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, obscured building defects, change of design, hard rock barriers below the surface) which Atomic Industries considers should be rectified for the safe completion of the Works;
- Atomic Industries is instructed to undertake extra works by any person authorised by any statutory, government or semi-government authority;
- Variations to the Works are required arising from inaccuracies in documents that the Client has supplied including for Materials already manufactured or procured or Works already done but not required; or
- Atomic Industries occasions extra costs in Materials, labour and overheads due to acceleration of the agreed work schedule or any obstructions or conditions not reasonably anticipated by Atomic Industries,
then Atomic Industries may carry out any such additional works or incur the extra costs at the expense of the Client. Any such additional works or extra costs are to be treated as a Variation. If a price for the additional works or extra costs is not agreed upon by Atomic Industries and the Client, Atomic Industries may vary the Price by the actual cost to Atomic Industries of carrying out the additional works plus 30%.
- Increased cost of Materials or cost of carrying out Works
Atomic Industries may by giving written notice to the Client at any time up to seven days before delivery of any Materials or performance of any part of the Works, increase the Price to reflect any increase in the cost to Atomic Industries of performing the Works beyond the reasonable control of Atomic Industries (including, but not limited to, changes in statutory, government or semi-government charges, taxes, duties, rates, levies or imposts, changes to any legislation, by-law, order or regulation of any federal, state or local government authority or any changes in foreign exchange fluctuation).
- Variation to Completion Date
If any Variations are required, Atomic Industries will be entitled to a reasonable extension of the Completion Date.
- Client’s risk
- Risk of damage, loss or destruction of the Materials will pass to the Client on delivery of the Materials to the Site. Risk of damage, loss or destruction of the Works will pass to the Client as and when each part of the Works is completed. The Client must insure the Materials prior to delivery of the Materials to the Site and insure the Works on and from the completion of each part of the Works.
- If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Client or if any part of the Works are damaged or destroyed prior to ownership of the Works passing to the Client, Atomic Industries is entitled to receive all insurance proceeds payable for the Materials and the Works. The production of these Terms and Conditions by Atomic Industries is sufficient evidence of Atomic Industries right to receive the insurance proceeds, without the need for any person dealing with Atomic Industries to make further enquiries.
- If the Client requests Atomic Industries to leave or deliver the Materials to an unattended Site then such Materials will be left at the Client’s sole risk.
- The Client must designate an area at the Site for storage of Atomic Industries plant, equipment and tools and must take all reasonable precautions to protect them from destruction, damage or theft. If they are destroyed, damaged or stolen, the cost of replacing them will be added to the Price.
The Client must effect:
- public liability insurance to a value of not less than $10,000,000 during the currency of the Works; and.
- insurance of the Works for their full insurable or replacement value (whichever is the higher),
in the joint names of the Client and Atomic Industries with an insurer licensed or authorised to conduct insurance business in the place where the Site is situated and must maintain such insurances until completion of the Works and ownership of the Works has passed to the Client pursuant to clause 9.1.
- Asbestos or other toxic substances
The Client must safely remove any asbestos or other toxic substances discovered at the Site at its cost. The Client indemnifies Atomic Industries against any costs incurred or loss or damage sustained by Atomic Industries as a consequence of such discovery. Under no circumstances will Atomic Industries be responsible for the removal of any asbestos product or other toxic substances.
- The Client warrants that:
(i) any structures, plant, equipment and fittings to which the Materials are to be affixed and upon which the Services are to be performed can withstand the installation of the Materials and the performance of the Services;
(ii) any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed; and
(iii) the Site (including all structures, plant, equipment and fittings to which the Materials are to be affixed) will comply with Australian Standards and that while Atomic Industries is performing the Works, the Site will be maintained as a place of work which complies with the Work Health and Safety Act 2011 (Q) and any other relevant safety standards and legislation.
- Atomic Industries may delay installation of the Materials and performance of the Works, if it reasonably forms the opinion that the Site is not safe for the installation of Materials or performance of the Works to proceed. The period of the delay is until Atomic Industries determines that the work health and safety laws and other relevant safety standards and legislation have been satisfied.
- Atomic Industries warrants that all Works will be electrically safe and comply with the wiring rules and other standards (AS/NZS 3000 Wiring Rules, Electrical Safety Act 2002 (Q)) applying to the electrical installation under the relevant Electrical Safety Regulations.
- Atomic Industries will notify the Client immediately of any defective or unsafe wiring/cabling within and around switchboards while providing Services. Atomic Industries will not re-energise the power until the existing condition has been rectified and made safe in accordance with the relevant Electrical Safety Regulations. The Client will be liable for any costs associated with rectifying the Works.
- No reliance
Any advice, recommendation, information, assistance or service provided by Atomic Industries in relation to the Works (“Advice”) is given in good faith and is based on Atomic Industries own knowledge and experience. The Client acknowledges that it has not and will not rely on any Advice, that Atomic Industries is not liable for any Advice and the Client will be responsible for confirming the accuracy and reliability of the Advice in light of the use to which the Client makes or intends to make of the Works.
7. ACCURACY OF CLIENT’S PLANS AND MEASUREMENTS
- Reliance on information provided by Client
Atomic Industries will 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, Atomic Industries accepts no responsibility for any loss, damage or costs however resulting from these inaccurate plans, specifications or other information.
- Client’s responsibility to verify accuracy
In the event the Client gives information relating to measurements and quantities of the Materials required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or Atomic Industries places an order based on these measurements and quantities. Atomic Industries accepts no responsibility for any loss, damage or costs however resulting from the Client’s failure to comply with this clause.
- Client provides access
The Client will ensure that Atomic Industries has clear and free access to the Site at all times to enable it to perform the Services. Atomic Industries will 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 Atomic Industries.
- Underground locations
The Client must advise Atomic Industries of the precise location of all underground services on the Site, including but not limited to electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services, and clearly mark the same, prior to the commencement of any Works by Atomic Industries.
8.3 Client to indemnify
While Atomic Industries will take all care to avoid damage to any underground services the Client agrees to indemnify Atomic Industries in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.2.
8.4 Client to co-operate
During the performance of the Works, the Client must:
- co-operate with Atomic Industries as Atomic Industries reasonably requires and ensure that its employees, contractors and agents do likewise;
- provide the information and documentation that Atomic Industries reasonably requires; and
- make available to Atomic Industries such facilities and resources as Atomic Industries reasonably requires.
9.1 Ownership of Works
Ownership of the Works will not pass to the Client until:
- the Client has paid Atomic Industries the Price in full and all other money owing to Atomic Industries; and
- the Client has met all of its other obligations to Atomic Industries set out in the Quotation, Contract or any other agreement between the parties.
9.2 When payment treated as being made
Payment of the Price or other money owing to Atomic Electric other than by way of cash will not be considered made until payment has been honoured, cleared or recognised by Atomic Industries bank.
The Client is a bailee of the Works until such time as ownership in them passes to the Client as referred to in clause 9.1 and during the period of the bailment:
- the Client owes Atomic Industries the duties and liabilities of a bailee;
- the Client must return the Works to Atomic Industries on request;
- the Client holds the benefit of the Client’s insurance of the Works on trust for Atomic Industries and must pay to Atomic Industries the proceeds of any insurance in the event of the Works being lost, damaged or destroyed;
- the Client must not sell, dispose, or otherwise part with possession of the Works or any document of title to the Works other than in the ordinary course of business and for market value;
- the Client must not allow any person or entity to have or acquire any Security Interest in the Works;
- the Client has no right or claim to any interest in the Works to secure any liquidated or unliquidated debt or obligation Atomic Industries owes to the Client;
- the Client cannot claim any lien over the Works;
- the Client must not convert or process the Works or intermix them with other goods;
- the Client must not remove, deface or obliterate any identifying plate, mark or number on any of the Works; and
- the Client must not create any absolute or defeasible interest in the Works in relation to any third party except as may be authorised by Atomic Industries.
9.4 Breach of bailment terms
- If the Client sells, disposes or parts with possession of the Works in breach of clause 9.3 then the Client must hold the proceeds of any such act on trust for Atomic Industries and must pay or deliver the proceeds to Atomic Industries on demand.
- If the Client converts or processes the Works, or intermixes them with other goods then the Client holds the resulting product on trust for the benefit of Atomic Industries and must sell, dispose of or return the resulting product to Atomic Industries as it so directs.
- If the Client fails to pay Atomic Industries the Price and all other money owing to Atomic Industries as and when payable or if the Client breaches clause 9.3:
(i) Atomic Industries may enter any premises where Atomic Industries believes the Works are kept and recover possession of the Works and the Client irrevocably authorises Atomic Industries to do so;
(ii) Atomic Industries may recover possession of any Works in transit if delivery has occurred;
(iii) Atomic Industries may dispose of the Works to recover the Price or other moneys owing to Atomic Industries; and
(iv) Atomic Industries may commence proceedings to recover the Price and any other money owing to Atomic Industries notwithstanding that ownership of the Works has not passed to the Client.
10. SECURITY AND CHARGE
- In consideration of Atomic Industries agreeing to supply the Materials and perform the Services, 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 the Quotation and/or Contract (including, but not limited to, the payment of any money).
- The Client indemnifies Atomic Industries from and against all Atomic Industries costs and disbursements including legal costs incurred in exercising Atomic Industries rights under this clause.
- The Client irrevocably appoints Atomic Industries and each director of Atomic Industries as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on the Client’s behalf.
- The parties acknowledge that:
(i) these Terms and Conditions create a Security Interest in all Works (by virtue of clause 9 – retention of title/bailment provision) and a Security Interest in all of the Client’s present and after-acquired property (by virtue of clause 10 – charging provision) being an interest in the Client’s Personal Property to secure payment of all moneys owing to Atomic Industries and all other obligations of the Client pursuant to these Terms and Conditions;
(ii) all collateral provided by the Client is Commercial Property;
(iii) the Security Interests created include a Purchase Money Security Interest and a PPS Lease (if the Completion Date or date for payment of the Price is more than one year after the Quotation is accepted by the Client); and
(iv) these Terms and Conditions constitute a Security Agreement for the purposes of the PPSA.
- The Client irrevocably authorises Atomic Industries and its lawyers to do the following:
(i) register one or more Financing Statements or Financing Change Statements (electronically or otherwise) on the PPSR in connection with these Terms and Conditions; and
(ii) register and record these Terms and Conditions (electronically or otherwise) in such other places as Atomic Industries or its lawyers may at any time consider necessary or desirable to perfect these Terms and Conditions or to protect the rights of Atomic Industries under them.
- The Client:
(i) will do all things necessary to enable:
- these Terms and Conditions and the transactions contained in them to be registered on the PPSR; and/or
- Atomic Industries rights to be perfected under the PPSA; and
(ii) waives its rights under section 157 of the PPSA requiring Atomic Industries to provide the Client with a verification statement or any other notice required under the PPSA unless the notice cannot be excluded;
(iii) will comply with all requirements of the PPSA;
(iv) indemnifies, and upon demand reimburse, Atomic Industries for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPSR or releasing any Works charged thereby;
(v) will not register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the Works and/or collateral in favour of a third party without the prior written consent of Atomic Industries; and
(vi) will not register a Financing Change Statement in respect of a Security Interest without the prior written consent of Atomic Industries.
- The remedies available to Atomic Industries under these Terms and Conditions are cumulative and in addition to the remedies available under the PPSA.
12. DEFECTS, WARRANTIES, LIABILITY AND INDEMNITY
The Client must inspect the Materials on delivery and must within seven days of delivery notify Atomic Industries in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or Quotation. The Client must notify Atomic Industries in writing of any other alleged defect in the Works as soon as reasonably possible after any such defect becomes evident but no later than three (3) months after the Completion Date. Upon such notification the Client must allow Atomic Industries to inspect the Works and if Atomic Industries has been negligent in performing the Works but subject to sub-clauses 12.3 and 12.5, allow Atomic Industries to re-perform the relevant part of the Works. If the Client fails to comply with this clause, the Works will be presumed to be free from any defect or damage and Atomic Industries will not be liable to rectify any Works.
12.2 Implied statutory guarantees and warranties
Nothing in these Terms and Conditions purports to modify, restrict or exclude any applicable provisions of Schedule 2 of the CCA (“Non-Excluded Guarantees”).
12.3 Limitation of liability
- Except as expressly set out in these Terms and Conditions or in respect of the Non-Excluded Guarantees, Atomic Industries makes no warranties or other representations under these Terms and Conditions or otherwise including but not limited to the quality or suitability of the Works or that any result or objective can or will be achieved or attained at all or by the Completion Date or any other date. Atomic Industries liability in respect of these warranties is limited to the fullest extent permitted by law.
- If the Client is a consumer within the meaning of the CCA, Atomic Industries liability is limited to the extent permitted by section 64A of Schedule 2 of the CCA.
- If the Client is not a consumer within the meaning of the CCA, Atomic Industries liability for any defect or damage in the Works is:
(i) limited to the value of any express warranty or warranty card provided to the Client by Atomic Industries at Atomic Industries sole discretion;
(ii) limited to any warranty to which Atomic Industries is entitled, if Atomic Industries did not manufacture the Materials; or
(iii) otherwise negated absolutely.
- Atomic Industries will not be liable in contract or in tort, or otherwise arising, for any loss, damage, cost or expense of any nature whatsoever incurred or suffered by the Client of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill or liquidated, pre-ascertained, special or contingent damages which may be claimed to have resulted from Atomic Industries performance of the Works or failure to perform any obligation under these Terms and Conditions.
- Notwithstanding any sub-clauses of this clause 12 but subject to the CCA, Atomic Industries will not be liable for any defect or damage which may be wholly or partially caused by or arise as a result of:
(i) the Client failing to properly maintain or store any Works;
(ii) the Client using the Works for any purpose other than that for which they were designed;
(iii) the Client continuing the use of any Works after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(iv) the Client failing to follow any instructions or guidelines provided by Atomic Industries; or
(v) fair wear and tear, any accident, or act of God.
- Atomic Industries liability under these Terms and Conditions will cease and Atomic Industries will not be liable to the Client in any way if the Works are repaired, altered or overhauled without Atomic Industries written consent.
- Atomic Industries will not be liable whatsoever to the Client for any indirect and/or consequential loss, damage, cost or expense (including loss of profit) suffered by the Client arising out of a breach by Atomic Industries of these Terms and Conditions (alternatively Atomic Industries liability will be limited to damages which under no circumstances will exceed the Price).
If Atomic Industries is required to replace all or part of the Works under this clause 12 or the CCA, but is unable to do so, Atomic Industries may refund any money the Client has paid for the relevant part of the Works.
- Subject to this clause 12, returns of Materials by the Client will only be allowed provided that:
(i) the Client has complied with the provisions of clause 12.1;
(ii) Atomic Industries has agreed that the Materials are defective;
(iii) the Materials are returned within a reasonable time at the Client’s cost; and
(iv) the Materials are returned in as close a condition to that in which they were delivered as is possible.
In such case, Atomic Industries will either replace or repair the Materials (at Atomic Industries sole discretion).
- Atomic Industries may in its absolute discretion acc