1.1 "OCCS" means Online Concrete Cutting Services Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Online Concrete Cutting Services Pty Ltd.
"Client" means the person/s requesting OCCS to provide the Services as specified in any invoice, document or order, and if there is more than one person requesting the Services is a reference to each person jointly and severally.
"Materials" means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by OCCS in the course of it conducting, or supplying to the Client, any Services.
"Services" means all Services supplied by OCCS to the Client at the Client's request from time to time.
"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.
"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 ordering from the 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 ordering via the website.
"Price" means the price payable (plus any GST where applicable) for the Services as agreed between OCCS and the Client in accordance with clause 4 of this contract.
"GST" means Goods and Services Tax as defined within the "A New Tax System (Goods and Services Tax) Act 1999" (Cth).
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 Services provided by OCCS.
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.
Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
None of OCCS' agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of OCCS in writing nor is OCCS bound by any such unauthorised statements.
Where OCCS gives advice, recommendations, information, assistance or service to the Client or the Clients agent, regarding the Services then it is given in good faith and OCCS shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Client relying on the same.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Change in Control
The Client shall give OCCS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client's details (including but not limited to, changes in the Client's name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by OCCS as a result of the Client's failure to comply with this clause.
Price and Payment
At OCCS' sole discretion the Price shall be either:
(a) as indicated on any invoice provided by OCCS to the Client; or
(b) the Price as at the date of delivery of the Services according to OCCS' current price list which are subject to change without notice, errors and omissions accepted; or
(c) OCCS' quoted price (subject to clause 4.3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
For sawing/drilling, the Price is based on the cutting of normal brickwork or concrete with normal bluestone aggregate, as determined by OCCS. Unless otherwise arranged, the sawing/drilling rates allow for 1x12mm re bar per area/hole; should a higher concentration of reinforcement be present, the Client shall be charged at the current rates applicable.
OCCS reserves the right to change the Price:
(a) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(b) 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 site, obscured site defects, safety considerations, or prerequisite work by any third party not being completed, incorrect information, specifications or measurements supplied by the Client, etc.) which are only discovered on commencement of the Services; or
(c) in the event of increases to OCCS in the cost of labour or materials, which are beyond OCCS' control.
Variations will be charged for in accordance with 4.1, and will be detailed in writing, and shown as variations on OCCS' invoice. The Client shall be required to respond to any variation submitted by OCCS within ten (10) working days. Failure to do so will entitle OCCS to add the cost of the variation to the Price. Payment for all variations will be due and payable by the date stated on the relevant invoice supplied.
At OCCS' sole discretion a non-refundable deposit may be required.
Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by OCCS, which may be:
(a) on provision of the Services;
(b) by way of instalments/progress payments in accordance with OCCS' 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 OCCS.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and OCCS.
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 OCCS nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to OCCS an amount equal to any GST OCCS must pay for any supply by OCCS under this or any other agreement for providing OCCS' Services. 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.
The Client acknowledges and agrees that the Client's obligations to OCCS for the provision of the Services shall not cease until the Client has paid OCCS all amounts owing for the particular Services; and the Client has met all other obligations due by the Client to OCCS in respect of all contracts between OCCS and the Client.
Receipt by OCCS of any form of payment other than cash shall not be deemed to be payment until that form of payment has been cleared/recognised and until then OCCS' ownership or rights in respect of the Services, and this contract, shall continue.
Where payment trading terms are provided by OCCS to the Client, OCCS is not required to inform the Client of the amount of credit provided to the Client. OCCS may provide the Client more or less credit than the Client has requested. OCCS also reserves the right to change the credit amount at any stage without prior notice to the Client.
At OCCS' sole discretion, and unless otherwise agreed by OCCS, no allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, OCCS reserves the right to treat all retentions as placing the Client's account into default.
Provision of Services
Subject to clause 6.2, it is OCCS' responsibility to ensure that the Works start as soon as it is reasonably possible.
The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that OCCS claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond OCCS' control, including but not limited to any failure by the Client to make a selection; or have the site ready for the Works; or notify OCCS that the site is ready.
Unless otherwise stated or arranged all Services shall be carried out during normal working hours (Monday to Friday, 7:00am to 3:30pm); any overtime shall be treated as an addition to the Price, and the Client shall be charged accordingly.
OCCS may deliver the Services by separate instalments. Each instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
Where the site is in a condition to make it necessary for OCCS to attend to the cleaning before or during the provision of the Services, the Client shall be charged in addition to the Price as per OCCS' current rates prevalent at the time the Services are provided.
Any time specified by OCCS for delivery of the Services is an estimate only and OCCS will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that OCCS is unable to supply the Services as agreed solely due to any action or inaction of the Client then OCCS shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
The Client acknowledges and agrees that concrete sawing and drilling operations generate concrete slurry which can stain, discolour, and contaminate existing work areas. The Client agrees that it is their responsibility, unless otherwise agreed, to make provisions for cleaning and removal of all concrete slurry generated from the Services.
Whilst OCCS shall endeavour to take all care and responsibility to meet the Client's requirements, such as the cutting of straight lines, the Client acknowledges that for long distance cutting the coverage could be subject to slight variances that are beyond OCCS' control, due to surface difficulties that provide an unstable surface. Such a variation is not considered defective but is an acceptable standard of variation.
OCCS shall not be held responsible for any damage to the Services caused by outside agents. Where the Client requests OCCS to repair such damage then OCCS reserves the right to charge the Client for any costs incurred in rectifying such damage.
It shall be the Client's responsibility to arrange for all other licenced tradesmen as required (including Plumbers, Gas Fitters) unless otherwise agreed between OCCS and the Client at that time of the quotation.
All quotations for Services in respect of other tradesmen will be treated strictly between the tradesmen and the Client. The Client agrees to indemnify OCCS from any damage caused by any other tradesmen during and after the completion of the Services.
It is the Client's responsibility to:
(a) ensure that the site is cleared of all material, tools and tackle and any other such obstacles that may hinder the proper and continued performance of the Services as per work health and safety (WHS) regulations; and
(b) unless otherwise agreed, clearly mark out in waterproof crayon the line of cut and/or the position of holes (and/or other Services) prior to the provision of the Services that are to be provided by OCCS;
(c) supply mains water and electricity within fifty (50) metres and thirty (30) metres respectively. Where OCCS is required to supply electricity or water, the Client shall be charged in addition to the Price at the current rates agreed before provision of the Services.
Where the site is high-rise (over three (3) levels above ground), the Client is to arrange appropriate access to elevators and/or crane, or to provide labour to carry equipment to the required floor / level.
The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify OCCS against any costs incurred by OCCS as a consequence of such discovery. Under no circumstances will OCCS handle removal of asbestos product.
OCCS is not responsible for the removal of rubbish from or clean-up of the building/constructions site/s. This is the responsibility of the Client or the Client's agent.
The Client must advise OCCS of the precise location of all underground services within the work area and clearly mark the same prior to allowing OCCS to commence work. As part of this, the Client should consult "Dial Before You Dig". The underground mains & 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 site. Whilst OCCS will take all care to avoid damage to any underground services the Client agrees to indemnify OCCS 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. If the Client requests OCCS to undertake service locating then this shall be in addition to the Price.
The Client shall ensure that OCCS has clear and free access to the work site at all times to enable them to undertake the Services. OCCS shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of OCCS.
Measurement of Services
At the completion of the Services the Client (or the representative of the Client) shall be in attendance and the Services shall then be duly measured. In the absence of either the Client, or their representative, OCCS shall carry out the necessary measurements and forward to the Client their calculations. If the Client does not object to the calculations within seven (7) days of receipt of the same then it shall be deemed acceptance of the same and the Services completed.
All customary building industry tolerances shall apply to the dimensions/measurements of the Services unless the Supplier and the Client agree otherwise in writing.
The Supplier shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client.
If the provision of a quote involves OCCS estimating measurements / quantities, it shall be the Clients responsibility to verify the accuracy of the estimated measurements / quantities, before the Client places an order or works proceeds.
Personal Property Securities Act 2009 ("PPSA")
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
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 collateral (account) – being a monetary obligation of the Client to OCCS for Services that have previously been provided and that will be provided in the future by OCCS to the Client.
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 OCCS 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 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, OCCS 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 registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of OCCS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the collateral (account) in favour of a third party without the prior written consent of OCCS.
OCCS 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.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by OCCS, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Client must unconditionally ratify any actions taken by OCCS under clauses 11.3 to 11.5.
Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of OCCS agreeing to supply 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 these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies OCCS from and against all OCCS' costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising OCCS' rights under this clause.
The Client irrevocably appoints OCCS and each director of OCCS as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client's behalf.
Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
The Client must inspect OCCS' Services on completion of the Services and must within seven (7) days notify OCCS in writing of any evident defect in the Services provided (including the Materials and/or OCCS' workmanship) or of any other failure by OCCS to comply with the description of, or quote for, the Services which OCCS was to supply. The Client must notify any other alleged defect in OCCS' Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow OCCS to review the Services that were provided.
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).
OCCS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, OCCS makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. OCCS' 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, OCCS' liability is limited to the extent permitted by section 64A of Schedule 2.
If OCCS is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then OCCS may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Materials which have been provided to the Client which were not defective.
If the Client is not a consumer within the meaning of the CCA, OCCS' liability for any defective Services is limited to the value of any express warranty or warranty card provided to the Client by OCCS at OCCS' sole discretion; or otherwise negated absolutely.
Notwithstanding clauses 13.1 to 13.7 but subject to the CCA, OCCS 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 Services;
(b) the Client using the Services for any purpose other than that for which they were designed;
(c) the Client continuing to use any Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Services by the Client or any third party without OCCS' prior approval;
(e) the Client failing to follow any instructions or guidelines provided by OCCS;
(f) fair wear and tear, any accident, or act of God.
Where OCCS has designed, drawn or developed Materials for the Client, then the copyright in any Materials shall remain the property of OCCS. Under no circumstances may such designs, drawings and documents be used without the express written approval of OCCS.
The Client warrants that all designs, specifications or instructions given to OCCS will not cause OCCS to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify OCCS against any action taken by a third party against OCCS in respect of any such infringement.
The Client agrees that OCCS may (at no cost) use for the purposes of marketing or entry into any competition, any Materials which OCCS has created for the Client.
Default and Consequences of Default
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 OCCS' sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes OCCS any money the Client shall indemnify OCCS from and against all costs and disbursements incurred by OCCS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, OCCS' contract default fee, and bank dishonour fees).
Further to any other rights or remedies OCCS may have under this contract, if a Client has made payment to OCCS, 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 OCCS under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client's obligations under this agreement.
Without prejudice to OCCS' other remedies at law OCCS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to OCCS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to OCCS becomes overdue, or in OCCS' 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 OCCS;
(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.
Compliance with Laws
The Client and OCCS shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
Without prejudice to any other remedies OCCS may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions OCCS may suspend or terminate the supply of Services to the Client. OCCS will not be liable to the Client for any loss or damage the Client suffers because OCCS has exercised its rights under this clause.
OCCS may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice OCCS shall repay to the Client any money paid by the Client for the Services. OCCS shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by OCCS as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Materials made to the Client's specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
All emails, documents, images or other recorded information held or used by OCCS is Personal Information, as defined and referred to in clause 19.3, and therefore considered Confidential Information. The OCCS 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"). The OCCS acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by OCCS that may result in serious harm to the Client, OCCS 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.
Notwithstanding clause 19.1, privacy limitations will extend to OCCS in respect of Cookies where transactions for purchases/orders transpire directly from OCCS' website. The OCCS 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 IP address, browser, email client type and other similar details; tracking website usage and traffic; and reports are available to OCCS when OCCS sends an email to the Client, so OCCS may collect and review that information ("collectively Personal Information"). In order to enable / disable the collection of Personal Information by way of Cookies, 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 proceeding with a purchase/order via OCCS' website.
The Client agrees for OCCS 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 OCCS.
The Client agrees that OCCS 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.
The Client consents to OCCS being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by OCCS for the following purposes (and for other agreed purposes or required by):
(a) the provision of Materials/Services; and/or
(b) analysing, verifying and/or checking the Client's credit, payment and/or status in relation to the provision of Materials/Services; 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 Materials/Services.
The OCCS 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.
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 OCCS 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, 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 OCCS has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of OCCS, 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).
The Client shall have the right to request (by e-mail) from OCCS a copy of the Personal Information about the Client retained by OCCS and the right to request that OCCS correct any incorrect Personal Information; and that OCCS does not disclose any Personal Information about the Client for the purpose of direct marketing.
OCCS will destroy Personal Information upon the Client's request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting OCCS via e-mail. OCCS will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
Building and Construction Industry Security of Payments Act 1999
At OCCS' sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
Nothing in this agreement 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 New South Wales, except to the extent permitted by the Act where applicable.
Service of Notices
Any written notice given under this contract shall be deemed to have been given and received by handing the notice to the other party, in person; or by leaving it at the address of the other party as stated in this contract; or by sending it by registered post to the address of the other party as stated in this contract; or 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; or if sent by email to the other party's last known email address.
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.
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.
These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which OCCS has its principal place of business, and are subject to the jurisdiction of the courts in that state.
Subject to clause 13 OCCS 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 OCCS of these terms and conditions (alternatively OCCS' liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
OCCS may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client's consent.
The Client cannot licence or assign without the written approval of OCCS.
OCCS 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 OCCS' sub-contractors without the authority of OCCS.
The Client agrees that OCCS 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 OCCS to provide Services and/or Materials to the Client.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.