Terms & Conditions

These are the terms and conditions for Johnny Sader ABN 64752296355 trading as Swift Emergency Glass Replacement

Operating under license no: No. 328366C Darko Alavanja

  1. Definitions
    1. “Swift” means Johnny Sader trading as Swift Emergency Glass Replacement ABN 64752296355 , its successors and assigns or any person acting on behalf of and with the authority of Swift Emergency Glass Replacement
    2. “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
    3. “Goods” means all Goods or Services supplied by SWIFT 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).
    4. “Price” means the Price payable for the Goods as agreed between SWIFT and the Client in accordance with clause 4 below.
  1. Acceptance
    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 Goods.
    2. These terms and conditions may only be amended with SWIFT’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and SWIFT.
  1. Change in Control
    1. The Client shall give SWIFT 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 SWIFT as a result of the Client’s failure to comply with this clause.
  1. Price and Payment
    1. At SWIFT’s sole discretion the Price shall be either:
      1. as indicated on any invoice provided by SWIFT to the Client; or
      2. SWIFT’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    2. SWIFT reserves the right to change the Price:
      1. if a variation to the Goods which are to be supplied is requested; or
      2. if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
      3. 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, safety considerations, prerequisite work by any third party not being completed, change of design, obscured building defects, hard rock barriers below the surface or iron reinforcing rods in concrete, or where additional Services are required to comply with building standards etc) which are only discovered on commencement of the Services; or
      4. in the event of increases to SWIFT in the cost of labour or materials which are beyond SWIFT’s control.
    3. The Client acknowledges that any Price given which includes working from scale drawings are subject to the final measurements taken from the worksite, and the Price payable by the Client will be based on actual measurements supplied and/or glazed/fitted by SWIFT.
    4. At SWIFT’s sole discretion a non-refundable deposit may be required.
    5. Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by SWIFT, which may be:
      1. on delivery of the Goods;
      2. before delivery of the Goods;
      3. by way of instalments/progress payments in accordance with SWIFT’s payment schedule;
      4. the date specified on any invoice or other form as being the date for payment;
      5. the date which is thirty (30) days following the date of any invoice given to the Client by SWIFT; or
      6. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by SWIFT.
    6. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5{8ab1276a86bd0a9d268690255ce42418a6f719a6773c860b4a16a60ff82b20d7}) of the Price), or by any other method as agreed to between the Client and SWIFT.
    7. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to SWIFT an amount equal to any GST SWIFT must pay for any supply by SWIFT 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.
  1. Delivery of Goods
    1. Delivery (“Delivery”) of the Goods is taken to occur at the time that:
      1. the Client or the Client’s nominated carrier takes possession of the Goods at SWIFT’s address; or
      2. SWIFT (or SWIFT’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
    2. At SWIFT’s sole discretion the cost of delivery is in addition to the Price.
    3. The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then SWIFT shall be entitled to charge a reasonable fee for redelivery and/or storage.
    4. SWIFT 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.
    5. Subject to clause 5.6 it is SWIFT’s responsibility to ensure that the Services start as soon as it is reasonably possible.
    6. The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that SWIFT claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond SWIFT’s control, including but not limited to any failure by the Client to:
      1. make a selection; or
      2. have the site ready for the Services; or
      3. notify SWIFT that the site is ready.
    7. Any time or date given by SWIFT to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and SWIFT will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
  1. Risk
    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.
    2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, SWIFT is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SWIFT is sufficient evidence of SWIFT’s rights to receive the insurance proceeds without the need for any person dealing with SWIFT to make further enquiries.
    3. If the Client requests SWIFT to leave Goods outside SWIFT’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
    4. Where SWIFT is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and SWIFT shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
    5. Where the contract does not include installation of Goods by SWIFT, SWIFT shall not be liable for any defect or damage resulting from incorrect or faulty installation.
    6. Where the Client is to supply SWIFT with any design specifications (including, but not limited to CAD drawings) the Client shall be responsible for providing accurate data. SWIFT shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Client.
    7. The Client accepts and acknowledges that although the Goods have been designed to withstand various conditions, SWIFT does not guarantee the Goods in the event of damage as a result of adverse weather conditions, (including, but not limited to, gale force winds (winds that exceed the manufacturers specified tolerance and/or Bureau of Meteorology definition regarding gale force winds, being winds that exceed 63-75kph and sustained for ten (10) minutes or more), tornados, hail storms, cyclones or hurricanes.
    8. In the event that the Goods and/or Services provided by SWIFT 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 SWIFT and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
    9. Whilst every care shall be taken by SWIFT, any damage or breakage to the Client’s existing glass during Services by SWIFT shall be at the Client’s own risk.
    10. Where the Client has supplied measurements or templates for SWIFT to complete the Goods, the Client acknowledges that SWIFT shall not be liable for any errors or damage resulting from the Client’s incorrect measurements or templates, unless the is a mistake by SWIFT by virtue of misinterpreting the measurements provided.
    11. Holes, cut outs and cutting of the Goods may weaken the strength of the Goods and although it’s unlikely, cracking may occur.  SWIFT 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.
    12. The Client acknowledges that Goods supplied may;
      1. exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
      2. expand, contract or distort as a result of exposure to heat, cold, weather; and
      3. mark or stain if exposed to certain substances; and
      4. be damaged or disfigured by impact or scratching.
    13. Any advice, recommendation, information, assistance or service provided by SWIFT in relation to Goods or Services supplied is given in good faith, is based on SWIFT’s own knowledge and experience and shall be accepted without liability on the part of SWIFT and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
  1. Access
    1. The Client shall ensure that SWIFT has clear and free access to the work site at all times to enable them to undertake the Services. SWIFT 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 SWIFT.
  1. Underground Locations
    1. Prior to SWIFT commencing any work the Client must advise SWIFT of the precise location of all underground services on the site and clearly mark the same. 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.
    2. Whilst SWIFT will take all care to avoid damage to any underground services the Client agrees to indemnify SWIFT in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.
  1. Title
    1. SWIFT and the Client agree that ownership of the Goods shall not pass until:
      1. the Client has paid SWIFT all amounts owing to SWIFT; and
      2. the Client has met all of its other obligations to SWIFT.
    2. Receipt by SWIFT 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.
    3. It is further agreed that:
      1. until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to SWIFT on request.
      2. the Client holds the benefit of the Client’s insurance of the Goods on trust for SWIFT and must pay to SWIFT the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      3. 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 SWIFT and must pay or deliver the proceeds to SWIFT on demand.
      4. 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 SWIFT and must sell, dispose of or return the resulting product to SWIFT as it so directs.
      5. the Client irrevocably authorises SWIFT to enter any premises where SWIFT believes the Goods are kept and recover possession of the Goods.
      6. SWIFT may recover possession of any Goods in transit whether or not delivery has occurred.
      7. 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 SWIFT.
      8. SWIFT may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
  1. Personal Property Securities Act 2009 (“PPSA”)
    1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
    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 and/or collateral (account) – being a monetary obligation of the Client to SWIFT for Services – that have previously been supplied and that will be supplied in the future by SWIFT to the Client.
    3. The Client undertakes to:
      1. 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 SWIFT may reasonably require to;
        1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        2. register any other document required to be registered by the PPSA; or
        3. correct a defect in a statement referred to in clause 10.2 (a) (i) or 10.2 (a) (ii);
      2. indemnify, and upon demand reimburse, SWIFT 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;
      3. not register a financing change statement in respect of a security interest without the prior written consent of SWIFT;
      4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of SWIFT;
      5. immediately advise SWIFT of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
    4. SWIFT 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.
    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.
    6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    7. Unless otherwise agreed to in writing by SWIFT, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    8. The Client must unconditionally ratify any actions taken by SWIFT under clauses 10.2 to 10.5.
    9. 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.
  1. Security and Charge
    1. In consideration of SWIFT agreeing to supply the Goods, 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).
    2. The Client indemnifies SWIFT from and against all SWIFT’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SWIFT’s rights under this clause.
    3. The Client irrevocably appoints SWIFT and each director of SWIFT 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.
  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    1. The Client must inspect the Goods on delivery and must within forty-eight (48) hours of delivery notify SWIFT 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 SWIFT to inspect the Goods.
    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).
    3. SWIFT acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, SWIFT makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. SWIFT’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    5. If the Client is a consumer within the meaning of the CCA, SWIFT’s liability is limited to the extent permitted by section 64A of Schedule 2.
    6. If SWIFT is required to replace the Goods under this clause or the CCA, but is unable to do so, SWIFT may refund any money the Client has paid for the Goods.
    7. If the Client is not a consumer within the meaning of the CCA, SWIFT’s liability for any defect or damage in the Goods is:
      1. limited to the value of any express warranty or warranty card provided to the Client by SWIFT at SWIFT’s sole discretion;
      2. limited to any warranty to which SWIFT is entitled, if SWIFT did not manufacture the Goods;
      3. otherwise negated absolutely.
    8. Subject to this clause 12, returns will only be accepted provided that:
      1. the Client has complied with the provisions of clause 12.1; and
      2. SWIFT has agreed that the Goods are defective; and
      3. the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      4. the Goods are returned in as close a condition to that in which they were delivered as is possible.

    1. Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, SWIFT shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      1. the Client failing to properly maintain or store any Goods;
      2. the Client using the Goods for any purpose other than that for which they were designed;
      3. 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;
      4. the Client failing to follow any instructions or guidelines provided by SWIFT;
      5. fair wear and tear, any accident, or act of God.
    2. SWIFT may in its absolute discretion accept non-defective Goods for return in which case SWIFT may require the Client to pay handling fees of up to twenty-five percent (25{8ab1276a86bd0a9d268690255ce42418a6f719a6773c860b4a16a60ff82b20d7}) of the value of the returned Goods plus any freight costs.
    3. Notwithstanding anything contained in this clause if SWIFT is required by a law to accept a return then SWIFT will only accept a return on the conditions imposed by that law.
  1. Intellectual Property
    1. Where SWIFT has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of SWIFT.
    2. The Client warrants that all designs, specifications or instructions given to SWIFT will not cause SWIFT to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify SWIFT against any action taken by a third party against SWIFT in respect of any such infringement.
    3. The Client agrees that SWIFT may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which SWIFT has created for the Client.
  1. Default and Consequences of Default
    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{8ab1276a86bd0a9d268690255ce42418a6f719a6773c860b4a16a60ff82b20d7}) per calendar month (and at SWIFT’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes SWIFT any money the Client shall indemnify SWIFT from and against all costs and disbursements incurred by SWIFT in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SWIFT’s contract default fee, and bank dishonour fees).
    3. Further to any other rights or remedies SWIFT may have under this contract, if a Client has made payment to SWIFT by credit card, 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 SWIFT 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 agreement.
    4. Without prejudice to any other remedies SWIFT may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions SWIFT may suspend or terminate the supply of Goods to the Client. SWIFT will not be liable to the Client for any loss or damage the Client suffers because SWIFT has exercised its rights under this clause.
    5. Without prejudice to SWIFT’s other remedies at law SWIFT shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SWIFT shall, whether or not due for payment, become immediately payable if:
      1. any money payable to SWIFT becomes overdue, or in SWIFT’s opinion the Client will be unable to make a payment when it falls due;
      2. 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
      3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  1. Compliance with Laws
    1. The Client and SWIFT 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.
    2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
    3. The Client agrees that the site will comply with any work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
  1. Cancellation
    1. SWIFT may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice SWIFT shall repay to the Client any money paid by the Client for the Goods. SWIFT shall not be liable for any loss or damage whatsoever arising from such cancellation.
    2. In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by SWIFT as a direct result of the cancellation (including, but not limited to, any loss of profits).
    3. Cancellation of orders for Goods 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.
  1. Privacy Act 1988
    1. The Client agrees for SWIFT to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by SWIFT.
    2. The Client agrees that SWIFT may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
      1. to assess an application by the Client; and/or
      2. to notify other credit providers of a default by the Client; and/or
      3. 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
      4. to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
    3. The Client consents to SWIFT being given a consumer credit report to collect overdue payment on commercial credit.
    4. The Client agrees that personal credit information provided may be used and retained by SWIFT for the following purposes (and for other agreed purposes or required by):
      1. the provision of Goods; and/or
      2. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
      3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      4. enabling the collection of amounts outstanding in relation to the Goods.
    5. SWIFT may give information about the Client to a CRB for the following purposes:
      1. to obtain a consumer credit report;
      2. allow the CRB to create or maintain a credit information file about the Client including credit history.
    6. The information given to the CRB may include:
      1. personal information as outlined in 17.1 above;
      2. name of the credit provider and that SWIFT is a current credit provider to the Client;
      3. whether the credit provider is a licensee;
      4. type of consumer credit;
      5. 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);
      6. 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 SWIFT has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
      7. information that, in the opinion of SWIFT, the Client has committed a serious credit infringement;
      8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    7. The Client shall have the right to request (by e-mail) from SWIFT:
      1. a copy of the information about the Client retained by SWIFT and the right to request that SWIFT correct any incorrect information; and
      2. that SWIFT does not disclose any personal information about the Client for the purpose of direct marketing.
    8. SWIFT 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 agreement or is required to be maintained and/or stored in accordance with the law.
    9. The Client can make a privacy complaint by contacting SWIFT via e-mail. SWIFT 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.
  1. Unpaid Seller’s Rights
    1. Where the Client has left any item with SWIFT for repair, modification, exchange or for SWIFT to perform any other service in relation to the item and SWIFT has not received or been tendered the whole of any moneys owing to it by the Client, SWIFT shall have, until all moneys owing to SWIFT are paid:
      1. a lien on the item; and
      2. the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
    2. The lien of SWIFT shall continue despite the commencement of proceedings, or judgment for any moneys owing to SWIFT having been obtained against the Client.
  1. Building and Construction Industry Payments Act 2004
    1. At SWIFT’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
    2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
  1. Building and Construction Industry Security of Payments Act 1999
    1. At SWIFT’s 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 Payments Act 1999 may apply.
    2. 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.
  1. General
    1. The failure by SWIFT to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SWIFT’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.
    2. These terms and conditions and any contract to which they apply shall be governed by the laws of the state of Queensland in which SWIFT has its principal place of business, and are subject to the jurisdiction of the Brisbane Courts in that state.
    3. Subject to clause 12 SWIFT 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 SWIFT of these terms and conditions (alternatively SWIFT’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
    4. 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 SWIFT nor to withhold payment of any invoice because part of that invoice is in dispute.
    5. SWIFT may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
    6. The Client agrees that SWIFT may amend these terms and conditions at any time. If SWIFT makes a change to these terms and conditions, then that change will take effect from the date on which SWIFT notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for SWIFT to provide Goods to the Client.
    7. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    8. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.