1. Definitions
1.1 “Acknowledgment Document” means the document signed by the Client in conjunction with these Terms and Conditions of Trade and applicable if KGS elects, whereby the Client acknowledges the extent and effect of the provision of security the Client provides to KGS in consideration of the provision of Goods or Services.
1.2 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting KGS 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.
1.3 “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.
1.4 “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.
1.5 “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 KGS’ 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.
1.6 “Goods” means all Goods or Services supplied by KGS to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.7 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.8 “KGS” means KGS & Sons Pty Ltd ATF KGS & Sons Family Trust T/A Karratha Glass Service, its successors and assigns or any person acting on behalf of and with the authority of KGS & Sons Pty Ltd ATF KGS & Sons Family Trust T/A Karratha Glass Service.
1.9 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between KGS and the Client in accordance with clause 5 below.

2. Acceptance
2.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 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 that the supply of Goods on credit shall not take effect until the Client has completed a credit application with KGS and it has been approved with a credit limit established for the account. In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, KGS reserves the right to refuse delivery.
2.5 In the event that the:
(a) Goods and/or Services provided by KGS are the subject of an insurance claim that the Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by KGS and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful; and
(b) Client requests KGS to make an emergency Call-Out or causes KGS to cancel or reschedule other work then KGS reserves the right to charge a minimum Call-Out fee plus a per kilometre travelled rate, additional labour costs (penalty rates will apply at time and a half normal rates) and any Goods used to undertake the Services unless otherwise agreed between KGS and the Client.
2.6 Where the Client requesting or organising KGS to provide Services is acting with or on behalf of any third party and that third party is intended to be responsible for the payment (or any part thereof) of the Price then in the event that the third party does not pay for the Services when due, the Client acknowledges that they shall be liable for the payment of the Price as if they had contracted the Services on their own behalf.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions
3.1 The Client acknowledges and accepts that KGS 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 KGS 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 KGS in respect of the Services.
3.2 In circumstances where the Client is required to place an order for Goods, 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 Goods (whether they are made to order Goods or not) (“Client Error”). The Client must pay for all Goods it orders from KGS notwithstanding that such Goods suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Goods. KGS is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

4. Change in Control
4.1 The Client shall give KGS 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 KGS as a result of the Client’s failure to comply with this clause.

5. Price and Payment
5.1 At KGS’ sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by KGS to the Client upon placement of an order for Goods; or
(b) KGS’ 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 KGS reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the worksite, availability of machinery, safety considerations, prerequisite work by any third party not being completed, obscured building defects, structural issues, the presence of wood rot, change of design etc) which are only discovered on commencement of the Services; or
(d) in the event of increases to KGS in the cost of labour or which are beyond KGS’ control.
5.3 Variations will be charged for on the basis of KGS’ quotation, and will be detailed in writing, and shown as variations on KGS’ invoice. The Client shall be required to respond to any variation submitted by KGS within ten (10) working days. Failure to do so will entitle KGS 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 Any Price given that includes working from scale drawings are subject to the final measurements taken from the worksite. The Price charged will be based on actual measurements supplied and/or glazed/fitted by KGS.
5.5 At KGS’ sole discretion, a reasonable deposit may be required upon placement of an order for Goods, in accordance with any quotation provided by KGS or as notified to the Client prior to the placement of an order for Goods.
5.6 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by KGS, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with KGS’ payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by KGS.
5.7 Payment may be made by cash, electronic/on-line banking, credit card (Visa and Mastercard and a surcharge may apply per transaction), or by any other method as agreed to between the Client and KGS.
5.8 KGS may in its discretion allocate any payment received from the Client towards any invoice that KGS determines and may do so at the time of receipt or at any time afterwards. On any default by the Client KGS may re-allocate any payments previously received and allocated. In the absence of any payment allocation by KGS, payment will be deemed to be allocated in such manner as preserves the maximum value of KGS’ Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.9 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 KGS 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 KGS in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as KGS investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in KGS placing the Client’s account into default and subject to default interest in accordance with clause 17.1.
5.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to KGS an amount equal to any GST KGS must pay for any supply by KGS under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set-off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

6. Provision of the Services
6.1 Subject to clause 6.2 it is KGS’ responsibility to ensure that the Services start as soon as it is reasonably possible.
6.2 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that KGS claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond KGS’ control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the worksite ready for the Services; or
(c) notify KGS that the worksite is ready.
6.3 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at KGS’ address; or
(b) KGS (or KGS’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.4 The cost of Delivery will be payable by the Client in accordance with the quotation provided by KGS to the Client, or as otherwise notified to the Client prior to the placement of an order for Goods.
6.5 KGS may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.6 The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.
6.7 Any time specified by KGS for Delivery of the Goods is an estimate only and KGS will not be liable for any loss or damage incurred by the Client because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If KGS is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then KGS shall be entitled to charge a reasonable fee for redelivery and/or storage.

7. Accuracy of Client’s Plans and Measurements
7.1 KGS shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, KGS accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.2 Where the Client has supplied measurements or templates for KGS to complete the Goods, the Client acknowledges that KGS shall not be liable for any errors or damage resulting from the Client’s incorrect measurements or templates, unless such error results from a mistake by KGS by virtue of misinterpreting the measurements provided.

8. Risk
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, KGS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by KGS is sufficient evidence of KGS’ rights to receive the insurance proceeds without the need for any person dealing with KGS to make further enquiries.
8.3 If the Client requests KGS to leave Goods outside KGS’ premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
8.4 Any advice, recommendation, information, assistance, or service provided by KGS in relation to the Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on KGS’ own knowledge and experience and shall be accepted without liability on the part of KGS. Where such advice or recommendations are not acted upon then KGS shall require the Client or their agent to authorise commencement of the Services in writing. KGS shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
8.5 The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and) are of suitable capacity to handle the Goods once installed. If, for any reason (including, but not limited to, the structure not being watertight, the discovery of wood rot etc.) that KGS reasonably forms the opinion that the Client’s property is not safe for the installation of Goods to proceed then KGS shall be entitled to delay installation of the Goods (in accordance with clause 6.2) until KGS is satisfied that it is safe for the installation to proceed.
8.6 Whilst every care shall be taken by KGS, any damage or breakage to the Client’s existing glass during the provision of the Services by KGS shall be at the Client’s own risk unless due to the negligence of KGS.
8.7 Holes, cut outs and cutting of the Goods may weaken the strength of the Goods and although it’s unlikely, cracking may occur. KGS accepts no responsibility against cracks occurring after such Goods (that are subject to holes and cut outs) are installed unless a toughened glass is used.
8.8 The Client acknowledges and accepts that:
(a) KGS is only responsible for parts that are replaced by KGS and that in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify KGS against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising;
(b) where installation occurs to adjoining glass panes or weakened surfaces (including, but not limited to flashings, frames, render or plaster), that whilst KGS shall exercise due care, cracks or scratches may occur in such surrounding surfaces or panes. KGS shall not be held liable where such damage occurs; and
(c) Goods supplied may:
(i) mark or stain if exposed to certain substances; and
(ii) be damaged or disfigured by impact or scratching.
8.9 Whilst KGS will make every effort to match:
(a) sales samples to the finished Goods KGS accepts no liability whatsoever where such samples differ to the finished Goods supplied; and
(b) batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
8.10 The application of paint on the Goods can reveal small defects in the glass that occur during the manufacture and processing of the Goods. KGS shall not be liable for such defects which can include small scratches, scuffs, seeds and/or toughening roller.
8.11 Where the Contract does not include installation of Goods by KGS, KGS shall not be liable for any defect or damage resulting from incorrect or faulty installation.

9. Worksite Access and Condition
9.1 KGS is not responsible for the removal of rubbish from or clean-up of the building/construction worksite/s. All rubbish generated by KGS will be placed in a designated area appointed by the Client but the responsibility of removal of same is the Client or the Client’s agent, unless otherwise agreed.
9.2 It is the intention of KGS and agreed by the Client that:
(a) the Client shall:
(i) ensure that KGS has clear and free access to the worksite at all times to enable them to undertake the Services (including carrying out worksite inspections, gain signatures for required documents, and for the delivery and installation of the Goods). KGS shall not be liable for any loss or damage to the worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of KGS;
(ii) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by KGS in this regard.
(b) it is the Client’s responsibility to provide KGS, while at the worksite, with adequate access to available electricity and/or other amenities where required.
9.3 The Client agrees to be present at the worksite when and as reasonably requested by KGS and its employees, contractors and/or agents.
9.4 In the event that KGS requires that Goods, tools etc. required for the Services be stored at the worksite, the Client shall supply KGS a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.
9.5 Worksite Inductions
(a) in the event the Client requires an employee or sub-contractor of KGS to undertake a worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay KGS’ standard (and/or overtime, if applicable) hourly labour rate; or
(b) where KGS is in control of the worksite, the Client and/or the Client’s third-party contractors must initially carry out KGS’ Health & Safety induction course before access to the worksite will be granted. Inspection of the worksite during the course of the Services will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by KGS.

10. Hidden Services
10.1 Prior to KGS commencing any work the Client must advise KGS of the precise location of all hidden services on the worksite and clearly mark the same. The hidden services the Client must identify include, but are 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 that may be on the worksite.
10.2 Whilst KGS will take all care to avoid damage to any hidden services the Client agrees to indemnify KGS 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 10.1.

11. Compliance with Laws
11.1 The Client and KGS shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services.
11.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
11.3 The Client agrees that the worksite will comply with any occupational health and safety (OHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

12. Title
12.1 KGS and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid KGS all amounts owing to KGS; and
(b) the Client has met all of its other obligations to KGS.
12.2 Receipt by KGS 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.
12.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Goods and must return the Goods to KGS on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for KGS and must pay to KGS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for KGS and must pay or deliver the proceeds to KGS on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of KGS and must sell, dispose of or return the resulting product to KGS as it so directs;
(e) the Client irrevocably authorises KGS to enter any premises where KGS believes the Goods are kept and recover possession of the Goods;
(f) KGS may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of KGS; and
(h) KGS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 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 Goods that have previously been supplied and that will be supplied in the future by KGS to the Client, and the proceeds from such Goods.
13.3 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 KGS 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 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, KGS 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 KGS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of KGS;
(e) immediately advise KGS of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
13.4 KGS 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.
13.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by KGS, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Client must unconditionally ratify any actions taken by KGS under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

14. Security and Charge
14.1 In consideration of KGS agreeing to supply the Goods and/or provide its Services and as acknowledged by KGS in accordance with any Acknowledgment Document the Client grants KGS a security interest by way of a floating charge (registerable by KGS pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, including but not limited to those set out in any Acknowledgment Document, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods and/or Services under this Contract and/or permit KGS to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).
14.2 The Client indemnifies KGS from and against all KGS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising KGS’ rights under this clause.
14.3 In the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 12.1 ,13.2 and 14.1 as applicable, is deemed insufficient by KGS to secure the repayment of monies owed by the Client to KGS, the Client hereby grants KGS a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money), in accordance with the Acknowledgement Document.

15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Client must inspect the Goods on Delivery and must within seven (7) days of Delivery notify KGS in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow KGS to inspect the Goods.
15.2 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).
15.3 KGS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, KGS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. KGS’ liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Client is a consumer within the meaning of the CCA, KGS’ liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If KGS is required to replace the Goods under this clause or the CCA, but is unable to do so, KGS may refund any money the Client has paid for the Goods.
15.7 If the Client is not a consumer within the meaning of the CCA, KGS’ liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by KGS at KGS’ sole discretion;
(b) limited to any warranty to which KGS is entitled, if KGS did not manufacture the Goods;
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(b) KGS has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, KGS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by KGS;
(e) fair wear and tear, any accident, or act of God.
15.10 KGS may in its absolute discretion accept non-defective Goods for return in which case KGS may require the Client to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.
15.11 Notwithstanding anything contained in this clause if KGS is required by a law to accept a return, then KGS will only accept a return on the conditions imposed by that law.
15.12 Subject to clause 15.1, customised, or non-stocklist items or Goods made or ordered to the Client’s specifications are not acceptable for credit or return.

16. Intellectual Property
16.1 Where KGS has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of KGS. Under no circumstances may such designs, drawings and documents be used without the express written approval of KGS.
16.2 The Client warrants that all designs, specifications, or instructions given to KGS will not cause KGS to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify KGS against any action taken by a third party against KGS in respect of any such infringement.
16.3 The Client agrees that KGS may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which KGS has created for the Client.

17. Default and Consequences of Default
17.1 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 KGS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Client owes KGS any money, the Client shall indemnify KGS 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 incurred in exercising KGS’ rights under these terms and conditions, internal administration fees, KGS’ 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.
17.3 Further to any other rights or remedies KGS may have under this Contract, if a Client has made payment to KGS, 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 KGS under this clause 17 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.
17.4 Without prejudice to KGS’ other remedies at law KGS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to KGS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to KGS becomes overdue, or in KGS’ 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 KGS;
(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.

18. Cancellation
18.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Goods and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
18.2 If KGS, due to reasons beyond KGS’ reasonable control, is unable to deliver any Goods and/or Services to the Client, KGS may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Client. On giving such notice KGS shall repay to the Client any money paid by the Client for the Goods and/or Services. KGS shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 The Client may cancel Delivery of the Goods and/or Services by written notice served within forty-eight (48) hours of placement of the order. If the Client cancels Delivery in accordance with this clause 18.3, the Client will not be liable for the payment of any costs of KGS, except where a deposit is payable in accordance with clause 5.5. Failure by the Client to otherwise accept Delivery of the Goods and/or Services shall place the Client in breach of this Contract.
18.4 Cancellation of orders for Goods 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.

19. Privacy Policy
19.1 All emails, documents, images, or other recorded information held or used by KGS is Personal Information, as defined and referred to in clause 19.3, and therefore considered Confidential Information. KGS 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”). KGS acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by KGS that may result in serious harm to the Client, KGS 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.
19.2 Notwithstanding clause 19.1, privacy limitations will extend to KGS in respect of Cookies where the Client utilises KGS’ website to make enquiries. KGS 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 KGS when KGS sends an email to the Client, so KGS may collect and review that information (“collectively Personal Information”)
If the Client consents to KGS’ use of Cookies on KGS’ website and later wishes to withdraw that consent, the Client may manage and control KGS’ privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
19.3 The Client agrees that KGS may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
19.4 The Client consents to KGS being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
19.5 The Client agrees that personal credit information provided may be used and retained by KGS 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 Client’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 Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
19.6 KGS may give information about the Client 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 Client including credit history.
19.7 The information given to the CRB may include:
(a) Personal Information as outlined in 19.3 above;
(b) name of the credit provider and that KGS 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 KGS 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 KGS has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of KGS, 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).
19.8 The Client shall have the right to request (by e-mail) from KGS:
(a) a copy of the Personal Information about the Client retained by KGS and the right to request that KGS correct any incorrect Personal Information; and
(b) that KGS does not disclose any Personal Information about the Client for the purpose of direct marketing.
19.9 KGS 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.
19.10 The Client can make a privacy complaint by contacting KGS via e-mail. KGS 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.

20. Building and Construction Industry (Security of Payment) Act 2021
20.1 At KGS’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry (Security of Payment) Act 2021 may apply.
20.2 Nothing in this Contract is intended to have the effect of contracting out of any provisions of the Building and Construction Industry (Security of Payment) Act 2021 of Western Australia, except to the extent permitted by the Act where applicable.

21. Service of Notices
21.1 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.
21.2 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.

22. Trusts
22.1 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 or as an agent for a trust (“Trust”) then whether or not KGS may have notice of the Trust, the Client covenants with KGS as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
(b) the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be 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, the trustees and 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 during the term of the Contract without consent in writing of KGS (KGS will not unreasonably withhold consent), cause, permit, or suffer to happen any of the 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 fund or trust property.

23. General
23.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
23.2 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, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the Karratha 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).
23.4 KGS may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
23.5 The Client cannot licence or assign without the written approval of KGS.
23.6 KGS 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 KGS’ sub-contractors without the authority of KGS.
23.7 The Client agrees that KGS 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 KGS to provide Goods to the Client.
23.8 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 KGS, once the parties agree that the Force Majeure event has ceased.
23.9 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.
23.10 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.
23.11 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.