Terms and conditions of trade

1.1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting FOL to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a partnership, it shall bind each partner jointly and severally; and

(c) if the Client is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and

(d) includes the Client’s executors, administrators, successors, and permitted assigns.

1.2 “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.

1.3 “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.

1.4 “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 Client does not wish to allow Cookies to operate in the background when using FOL’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.5 “FOL” means Flick On Lighting Solutions (Aus) Pty Ltd T/A Flick On Lighting Solutions, its successors and assigns or any person acting on behalf of and with the authority of Flick On Lighting Solutions (Aus) Pty Ltd T/A Flick On Lighting Solutions.

1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

1.7 “Price” means the Price payable (plus any GST where applicable) for the Products as agreed between FOL and the Client in accordance with clause 5 below.

1.8 “Products” means all Products or Services supplied by FOL to the Client at the Client’s request from time to time (where the context so permits the terms ‘Products’ or ‘Services’ shall be interchangeable for the other).

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 Products.

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 Client acknowledges and accepts that the supply of Products:

(a) on credit shall not take effect until the Client has completed a credit application with FOL and it has been approved with a credit limit established for the account. In the event that the supply of Products requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, FOL reserves the right to refuse delivery; and

(b) for accepted orders may be subject to availability and if, for any reason, Products are not or cease to be available, FOL reserves the right to vary the Price with alternative Products as per clause 5.2, subject to prior confirmation and agreement of both parties.

2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Communications Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3.1 The Client acknowledges and accepts that FOL 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 FOL 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 FOL 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 FOL; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

3.3 In circumstances where the Client is required to place an order for Products, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Products (whether they are made to order Products or not) ("Client Error"). The Client must pay for all Products it orders from FOL notwithstanding that such Products suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Products. FOL is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

4.1 The Client shall give FOL 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, change of trustees, or business practice). The Client shall be liable for any loss incurred by FOL as a result of the Client’s failure to comply with this clause.

5.1 At FOL’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by FOL to the Client; or

(b) the Price as at the date of Delivery of the Products according to FOL’s current price list; or

(c) FOL’s quoted Price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2 FOL reserves the right to change the Price:

(a) if a variation to the Products or Services which are to be supplied is requested; or

(b) if during the course of the Services, the Products cease to be available from FOL’s third-party suppliers, then FOL reserves the right to provide alternative Products, subject to prior confirmation and agreement of both parties; or

(c) in the event of increases to FOL in the cost of labour or materials (including, but not limited to, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond FOL’s control.

5.3 Variations will be charged for on the basis of FOL’s quotation, and will be detailed in writing, and shown as variations on FOL’s invoice. The Client shall be required to respond to any variation submitted by FOL within ten (10) working days. Failure to do so will entitle FOL to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

5.4 At FOL’s sole discretion, a non-refundable deposit of thirty percent (30%) may be required (including, but not limited to, non-standard, customised, non- regular, seasonal or ordered Products) prior to ordering. Fulfilment of any such order with only commence upon receipt of cleared deposited funds.

5.5 Time for payment for the Products being of the essence, the Price will be payable by the Client on the date/s determined by FOL, which may be:

(a) on or before delivery of the Products;

(b) by way of instalments/progress payments in accordance with FOL’s payment schedule;

(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 fourteen (14) days following the date of any invoice given to the Client by FOL.

5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), EZI Debit or by any other method as agreed to between the Client and FOL.

5.7 FOL may in its discretion allocate any payment received from the Client towards any invoice that FOL determines and may do so at the time of receipt or at any time afterwards. On any default by the Client FOL may re-allocate any payments previously received and allocated. In the absence of any payment allocation by FOL, payment will be deemed to be allocated in such manner as preserves the maximum value of FOL’s Purchase Money Security Interest (as defined in the PPSA) in the Products.

5.8 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 FOL nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify FOL in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as FOL investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in FOL placing the Client’s account into default and subject to default interest in accordance with clause 14.1.

5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to FOL an amount equal to any GST FOL must pay for any supply by FOL under this or any other agreement for the sale of the Products. 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.

6.1 Delivery (“Delivery”) of the Products is taken to occur at the time that:

(a) the Client or the Client’s nominated carrier takes possession of the Products at FOL’s address; or

(b) FOL (or FOL’s nominated carrier) delivers the Products to the Client’s nominated address even if the Client is not present at the address.

6.2 At FOL’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.

6.3 FOL may deliver the Products in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.4 Deliveries are processed promptly upon receipt of full payment or when orders are placed by an approved Credit Account Client.

6.5 If there is a delay in dispatch of Products due to unavailability of Products, FOL will notify the Client of the new expected timeframe for the Delivery or may offer an alternative Product. In the event the Client does not want to proceed with either of these options, FOL shall repay to the Client in full any money paid by the Client for the Products.

6.6 FOL is not responsible for Products that are either damaged in transit or not received. Damaged or lost orders should be resolved with the relevant courier company directly. Replacement of damaged or lost items is made at the discretion of FOL.

6.7 Any time specified by FOL for Delivery of the Products is an estimate only. The Client must take Delivery by receipt or collection of the Products whenever they are tendered for Delivery. There will be circumstances where the delay in Delivery is due to circumstances beyond FOL’s control. In the event of a substantial delay in any Delivery, it is agreed that FOL shall make every endeavour to enable the Delivery to be supplied at a new time and place as decided between both parties. In any event that FOL is unable to supply the Products as agreed solely due to any action or inaction of the Client or an event beyond FOL’s control, then FOL will not be liable for any loss or damage incurred by the Client as a result of any delayed Delivery, FOL shall be entitled to charge a reasonable fee for re-supplying the Products at a later time and date, and/or for storage of the Products.

7.1 Risk of damage to or loss of the Products passes to the Client on Delivery and the Client must insure the Products on or before Delivery.

7.2 If any of the Products are damaged or destroyed following Delivery but prior to ownership passing to the Client, FOL is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by FOL is sufficient evidence of FOL’s rights to receive the insurance proceeds without the need for any person dealing with FOL to make further enquiries.

7.3 If the Client requests FOL to leave Products outside FOL’s premises for collection or to deliver the Products to an unattended location, then such Products shall be left at the Client’s sole risk.

7.4 The Client acknowledges and accepts that:

(a) the warranty on Products will not apply where such Products have become defective as a result of power spikes or surges, fire, misuse, neglect, accident, abuse, improper installation/operation, modifications or unsuitable environmental conditions; and

(b) unless the Client obtains a written arrangement from FOL, at the time of purchase, the warranty on such Products will become void where LED drivers or lights purchased from FOL are subsequently used alongside other manufacturers’ LED products.

7.5 FOL recommends that where applicable, that the Products are installed by a suitably qualified electrician.

8.1 The Client and FOL shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Products/Services.

9.1 FOL and the Client agree that ownership of the Products shall not pass until:

(a) the Client has paid FOL all amounts owing to FOL; and

(b) the Client has met all of its other obligations to FOL.

9.2 Receipt by FOL 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.

9.3 It is further agreed that, until ownership of the Products passes to the Client in accordance with clause 9.1:

(a) the Client is only a bailee of the Products and must return the Products to FOL on request;

(b) the Client holds the benefit of the Client’s insurance of the Products on trust for FOL and must pay to FOL the proceeds of any insurance in the event of the Products being lost, damaged or destroyed;

(c) the Client must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Products then the Client must hold the proceeds of any such act on trust for FOL and must pay or deliver the proceeds to FOL on demand;

(d) the Client should not convert or process the Products 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 FOL and must sell, dispose of or return the resulting product to FOL as it so directs;

(e) the Client irrevocably authorises FOL to enter any premises where FOL believes the Products are kept and recover possession of the Products;

(f) FOL may recover possession of any Products in transit whether or not Delivery has occurred;

(g) the Client shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of FOL;

(h) FOL may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Client.

10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

10.2 Upon assenting to these terms and conditions in writing the Client 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 Products that have previously been supplied and that will be supplied in the future by FOL to the Client, and the proceeds from such Products.

10.3 The Client 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 FOL 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 10.3(a)(i) or 10.3(a)(ii);

(b) indemnify, and upon demand reimburse, FOL 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 Products charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of FOL;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products or the proceeds of such Products in favour of a third party without the prior written consent of FOL;

immediately advise FOL of any material change in its business practices of selling the Products which would result in a change in proceeds derived from such sales.

10.4 FOL and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

10.7 Unless otherwise agreed to in writing by FOL, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

10.8 The Client must unconditionally ratify any actions taken by FOL under clauses 10.3 to 10.5.

10.9 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

11.1 In consideration of FOL agreeing to supply the Products, 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, and the Client grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering FOL’s security interest over the Client on the PPSA, 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).

11.2 The Client indemnifies FOL from and against all FOL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising FOL’s rights under this clause.

11.3 The Client irrevocably appoints FOL and each director of FOL as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.

12.1 The Client must notify FOL within thirty (30) days of Delivery if the Client is required to return Products due to issues other than warranty or wrong Delivery. This is not applicable for Products made to Client’s specifications, Products purchased in store and non-stocklist items.

The Client must inspect the Products on Delivery and must within seven (7) days of Delivery notify FOL 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 Products as soon as reasonably possible after any such defect becomes evident. The Goods must be return to FOL with a completed Warranty Claim Form (available on FOL’s website) to provide FOL with an opportunity to inspect the Goods. For more information on warranty claims terms and process please refer to the Warranty Against Defects Policy click here.

12.1 The Client acknowledges and accepts that for the purposes of any possible warranty claim, an invoice showing the date of purchase and installation by a qualified electrician (where applicable) must be provided at the time of claim. Warranties are given to the original purchaser and ownership may not be assigned or transferred to any other party. All such documentation is the responsibility of the Client.

12.2 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).

12.3 FOL acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, FOL makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Products. FOL’s liability in respect of these warranties is limited to the fullest extent permitted by law.

12.5 If the Client is a consumer within the meaning of the CCA, FOL’s liability is limited to the extent permitted by section 64A of Schedule 2.

1.6 If FOL is required to replace the Products under this clause or the CCA, but is unable to do so, FOL may refund any money the Client has paid for the Products.

1.7 If the Client is not a consumer within the meaning of the CCA, FOL’s liability for any defect or damage in the Products is:

(a) limited to the value of any express warranty or warranty card provided to the Client by FOL at FOL’s sole discretion;

(b) limited to any warranty to which FOL is entitled, if FOL did not manufacture the Products;

(c) otherwise negated absolutely.

12.8 Subject to this clause 12, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 12.2; and

(b) FOL has agreed that the Products are defective; and

(c) the Products are returned within seven (7) days from notification of intent to return and at the Client’s cost (if that cost is not significant);

(d) the Products are returned in as close a condition to that in which they were delivered as is possible; and

(e) the packaging boxes for individual products must not be marked, ripped or taped, and must be in its original condition as when it was delivered.

12.9 Provided that FOL have accepted the returned Products in accordance with clause 12.10, FOL will repair, provide replace or offer an alternative product. If FOL is unable to provide a replacement of the Products or Client does not accept an alternative product offered, FOL will either refund any money paid for the Products using the same method by which payment was made or provide a FOL store credit to the value of the purchased Products at the option of the Client. Refunds and store credits will normally be processed within thirty (30) days of FOL receiving the returned Products.

12.10 Notwithstanding clauses 12.2 to 12.10 but subject to the CCA, FOL 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 Products;

(b) the Client using the Products for any purpose other than that for which they were designed;

(c) the Client continuing the use of any Products 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 FOL;

(e) fair wear and tear, any accident, or act of God.

12.11 FOL may in its absolute discretion accept non-defective Products for return in which case FOL may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Products plus any freight costs.

12.12 Notwithstanding anything contained in this clause if FOL is required by a law to accept a return, then FOL will only accept a return on the conditions imposed by that law.

12.13 Furthermore, returns of non-defective Products due to incorrect Client ordering or change of mind must be advised within seven (7) days of receipt of the Products, and return must be affected within seven (7) days of receipt of the return approval, but this may incur a handling fee as per clause 12.13 or an administration fee of thirty ($30.00), whichever is the greater, plus any freight.

12.14 Subject to clause 12.2, customised, or non-stocklist items or Products made or ordered to the Client’s specifications are not acceptable for credit or return.

13.1 Where FOL has designed, drawn or developed Products for the Client, then the copyright in any designs and drawings and documents shall remain the property of FOL. Under no circumstances may such designs, drawings and documents be used without the express written approval of FOL.

13.2 The Client agrees that FOL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Products which FOL has created for the Client.

14.1 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 FOL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

14.2 If the Client owes FOL any money, the Client shall indemnify FOL from and against all costs and disbursements:

(a) incurred; and/or

(b) which would be incurred and/or

(c) for which by the Client would be liable;

in regard to legal costs on a solicitor and own client basis, internal administration fees, FOL’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

14.3 Further to any other rights or remedies FOL may have under this Contract, if a Client has made payment to FOL, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by FOL under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.

14.4 Without prejudice to FOL’s other remedies at law FOL shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to FOL shall, whether or not due for payment, become immediately payable if:

(a) any money payable to FOL becomes overdue, or in FOL’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client has exceeded any applicable credit limit provided by FOL;

(c) 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

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

15.1 Without prejudice to any other remedies FOL may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions FOL may suspend or terminate the supply of Products to the Client. FOL will not be liable to the Client for any loss or damage the Client suffers because FOL has exercised its rights under this clause.

15.2 FOL may cancel any Contract to which these terms and conditions apply or cancel Delivery of Products at any time before the Products are delivered by giving written notice to the Client. On giving such notice FOL shall repay to the Client any money paid by the Client for the Products. FOL shall not be liable for any loss or damage whatsoever arising from such cancellation.

15.3 If the Client cancels Delivery of Products, the Client shall be liable for all losses incurred (whether direct or indirect) by FOL as a direct result of the cancellation (including, but not limited to, any loss of profits).

15.4 Cancellation of orders for Products made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.

16.1 At FOL’s sole discretion, if there are any disputes or claims for unpaid Products and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.

16.2 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of South Australia, except to the extent permitted by the Act where applicable.

17.1 All emails, documents, images, or other recorded information held or used by FOL is Personal Information, as defined and referred to in clause 17.4, and therefore considered Confidential Information. FOL 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”). FOL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by FOL that may result in serious harm to the Client, FOL will notify the Client 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 Client by written consent, unless subject to an operation of law.

17.2 Notwithstanding clause 17.1, privacy limitations will extend to FOL in respect of Cookies where the Client utilises FOL’s website to make enquiries. FOL 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 Client’s:

(a) IP address, browser, email client type and other similar details;

(b) tracking website usage and traffic; and

(c) reports are available to FOL when FOL sends an email to the Client, so FOL may collect and review that information (“collectively Personal Information”)

If the Client consents to FOL’s use of Cookies on FOL’s website and later wishes to withdraw that consent, the Client may manage and control FOL’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

17.3 The Client agrees for FOL 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 Client in relation to credit provided by FOL.

17.4 The Client agrees that FOL may exchange information about the Client with those credit providers and with related body corporates for 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 including the Client’s repayment history in the preceding two (2) years.

17.5 The Client consents to FOL being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.

17.6 The Client agrees that personal credit information provided may be used and retained by FOL for following purposes (and for other agreed purposes or required by):

(a) the provision of Products; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Products; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d) enabling the collection of amounts outstanding in relation to the Products.

17.7 FOL may give information about the Client to a CRB for following purposes:

(a) to obtain a consumer credit report;

(b) allow the CRB to create or maintain a credit information file about the Client including credit history.

17.8 The information given to the CRB may include:

(a) Personal Information as outlined in 17.4 above;

(b) name of the credit provider and that FOL is a current credit provider to the Client;

(c) whether the credit provider is a licensee;

(d) type of consumer credit;

(e) details concerning the Client’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 (provided FOL is a member of an approved OAIC External Disputes Resolution Scheme), 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 Client no longer has any overdue accounts and FOL has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of FOL, the Client has committed a serious credit infringement;

(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

17.9 The Client shall have the right to request (by e-mail) from FOL:

(a) a copy of the Personal Information about the Client retained by FOL and the right to request that FOL correct any incorrect Personal Information; and

(b) that FOL does not disclose any Personal Information about the Client for the purpose of direct marketing.

17.10 FOL will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

17.11 The Client can make a privacy complaint by contacting FOL via e-mail. FOL will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

18.1 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.

18.2 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.

19.1 If the Client 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 FOL may have notice of the Trust, the Client covenants with FOL as follows:

(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) the Client 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 Client against the Trust or the trust fund. The Client 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 Client will not without consent in writing of FOL (FOL will not unreasonably withhold consent), cause, permit, or suffer to happen any of following events:

(i) the removal, replacement or retirement of the Client 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.

20.1 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.

20.2 These terms and conditions and any Contract to which they apply shall be governed by the laws of South Australia and are subject to the jurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).

20.3 Subject to clause 12, FOL 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 FOL of these terms and conditions (alternatively FOL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Products).

20.4 FOL may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

20.5 The Client cannot licence or assign without the written approval of FOL.

20.6 FOL may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of FOL’s sub-contractors without the authority of FOL.

20.7 The Client agrees that FOL may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for FOL to provide Products to the Client.

20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to FOL.

20.9 Both parties warrant that they have the power to enter 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.

The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.