Terms of Trade
1.1 “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.
1.2 “Grillex” means Grillex Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Grillex Pty Ltd.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Grillex to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by Grillex to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “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.
1.6 “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 Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Grillex and the Customer in accordance with clause 6 below.
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Goods.
2.2 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.3 The Customer acknowledges and accepts that:
(a) the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Grillex and it has been approved with a credit limit established for the account;
(b) in the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, Grillex reserves the right to refuse Delivery; and
(c) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Grillex reserves the right to vary the Price with alternative Goods as per clause 6.2, subject to prior confirmation and agreement of both parties. Grillex also reserves the right to halt all Services until such time as Grillex and the Customer agree to such changes. Grillex shall not be liable to the Customer for any loss or damage the Customer suffers due to Grillex exercising its rights under this clause.
2.4 These terms and conditions may be meant to be read in conjunction with the Monitoring Agreement Form and/or any other prior document or schedule that the parties have entered into, and if there are any inconsistencies between the these documents then the terms and conditions contained therein shall prevail.
2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that Grillex 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 Grillex 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 Grillex in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Grillex; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change In Control
4.1 The Customer shall give Grillex not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by Grillex as a result of the Customer’s failure to comply with this clause.
5. Contract Term
5.1 The commencement date shall be the date of the first Delivery of the Services under a Monitoring Agreement, or from the date of signing, whichever, is the earlier. A Monitoring Agreement shall be for the period (“initial term”) as agreed between both parties and shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least thirty (30) days’ required notice as defined in the Monitoring Agreement prior to the expiration date of the initial term or any additional term.
5.2 The Customer acknowledges and accepts that all fixed term Contracts are subject to periodic price reviews to allow for increases to Grillex which are beyond Grillex’s control and will be subject to revision on the basis of changes to the costs of labour, materials or movement in the Consumer Price Index (CPI).
6. Price and Payment
6.1 At Grillex’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by Grillex to the Customer; or
(b) the Price as at the date of Delivery of the Goods according to Grillex’s current price list; or
(c) where the Customer is on a “Contract term”), the Customer is required to pay monthly charges for the on-going provision of the Services to the Customer by Grillex as stipulated in this Contract; or
(d) Grillex’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 Grillex 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, limitation to accessing the site, availability of machinery, safety considerations, changes of design, colour or finishes, etc.) which are only discovered on commencement of the Services; or
(d) if during the course of the Services, the Goods are not or cease to be available from Grillex’s third party suppliers, then Grillex reserves the right to provide alternative Goods; or
(e) in the event of increases to Grillex in the cost of labour or materials which are beyond Grillex’s control.
6.3 Variations will be charged for on the basis of Grillex’s quotation, and will be detailed in writing, and shown as variations on Grillex’s invoice. The Customer shall be required to respond to any variation submitted by Grillex within ten (10) working days. Failure to do so will entitle Grillex 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.
6.4 At Grillex’s sole discretion, a non-refundable deposit may be required.
6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Grillex, which may be:
(a) on Delivery of the Goods;
(b) for certain approved Customers, due thirty (30) days following the date specified on any invoice or other form as being the date for payment; or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Grillex.
6.6 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 Customer and Grillex.
6.7 Grillex may in its discretion allocate any payment received from the Customer towards any invoice that Grillex determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Grillex may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Grillex, payment will be deemed to be allocated in such manner as preserves the maximum value of Grillex’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Grillex nor to withhold payment of any invoice because part of that invoice is in dispute.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Grillex an amount equal to any GST Grillex must pay for any supply by Grillex under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Grillex’s address; or
(b) Grillex (or Grillex’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
7.2 At Grillex’s sole discretion, the cost of Delivery is in addition to the Price.
7.3 Grillex 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.
7.4 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%); and
(b) the Price shall be adjusted pro rata to the discrepancy.
7.5 Any time specified by Grillex for Delivery of the Goods is an estimate only and Grillex will not be liable for any loss or damage incurred by the Customer as a result 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. Where the Customer fails to take Delivery by receipt or collection of the Goods within seven (7) days of being tendered for Delivery, Grillex shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.6 It is the Customer’s responsibility to arrange to have a forklift available at the delivery site for unloading the Goods. Upon the Customer’s request Grillex can arrange a forklift, however all costs associated with obtaining a forklift shall be at the Customer’s expense.
7.7 Lead time is subject to the availability of materials and current level of work in progress by Grillex.
8.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer 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 Customer, Grillex is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Grillex is sufficient evidence of Grillex’s rights to receive the insurance proceeds without the need for any person dealing with Grillex to make further enquiries.
8.3 If the Customer requests Grillex to leave Goods outside Grillex’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
8.4 The Customer warrants that any equipment or 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 that Grillex, or employees of Grillex, reasonably form the opinion that the Customer’s premises is not safe for the installation of Goods to proceed then Grillex shall be entitled to delay installation of the Goods until Grillex is satisfied that it is safe for the installation to proceed.
8.5 Grillex shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, Grillex accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8.6 The Customer acknowledges and accepts that:
(a) all descriptive specifications, illustrations, dimensions and weights stated in Grillex’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Grillex;
(b) where any surface finish (including but not limited to anodised, galvanised, zinc-plated, powder-coated or painted) has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in raw materials available and manufacturing standards and tolerances shall not deemed to be a defect in the Goods;
(c) Goods supplied may:
(i) exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Grillex will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur;
(ii) expand, contract or distort as a result of exposure to heat, cold, weather;
(iii) mark or stain if exposed to certain substances; and
(iv) be damaged or disfigured by impact or scratching.
9.1 The Customer shall ensure that Grillex has clear and free access to the site at all times to enable them to deliver or install the Goods. Grillex 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 Grillex.
10. Compliance with Laws
10.1 The Customer and Grillex 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.
10.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
10.3 The Customer agrees that the site will comply with any workplace health and safety (WHS) laws relating to the site and any other relevant safety standards or legislation.
11.1 Grillex and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Grillex all amounts owing to Grillex; and
(b) the Customer has met all of its other obligations to Grillex.
11.2 Receipt by Grillex 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.
11.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 11.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to Grillex on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Grillex and must pay to Grillex the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Grillex and must pay or deliver the proceeds to Grillex on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Grillex and must sell, dispose of or return the resulting product to Grillex as it so directs;
(e) the Customer irrevocably authorises Grillex to enter any premises where Grillex believes the Goods are kept and recover possession of the Goods;
(f) Grillex may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Customer 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 Grillex;
(h) Grillex may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12. Personal Property Securities Act 2009 ("PPSA")
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Customer 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 Customer to Grillex for Services – that have previously been supplied and that will be supplied in the future by Grillex to the Customer.
12.3 The Customer 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 Grillex 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 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, Grillex 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 Grillex;
(d) 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 Grillex;
(e) immediately advise Grillex 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.
12.4 Grillex and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by Grillex, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by Grillex under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of Grillex agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Customer indemnifies Grillex from and against all Grillex’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Grillex’s rights under this clause.
13.3 The Customer irrevocably appoints Grillex and each director of Grillex as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (cca)
14.1 The Customer must inspect the Goods on Delivery and must within four (4) days of Delivery notify Grillex in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Grillex to inspect the Goods.
14.2 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).
14.3 Grillex acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Grillex makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Grillex’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, Grillex’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If Grillex is required to replace the Goods under this clause or the CCA, but is unable to do so, Grillex may refund any money the Customer has paid for the Goods.
14.7 If the Customer is not a consumer within the meaning of the CCA, Grillex’s 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 Customer by Grillex at Grillex’s sole discretion;
(b) limited to any warranty to which Grillex is entitled, if Grillex did not manufacture the Goods;
(c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 14.1; and
(b) Grillex has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’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.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, Grillex 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 Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer 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 Customer failing to follow any instructions or guidelines provided by Grillex;
(e) fair wear and tear, any accident, or act of God.
14.10 Grillex may in its absolute discretion accept non-defective Goods for return in which case Grillex may require the Customer to pay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
14.11 Notwithstanding anything contained in this clause if Grillex is required by a law to accept a return then Grillex will only accept a return on the conditions imposed by that law.
15. Intellectual property
15.1 Where Grillex has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Grillex. Under no circumstances may such designs, drawings and documents be used without the express written approval of Grillex.
15.2 The Customer warrants that all designs, specifications or instructions given to Grillex will not cause Grillex to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Grillex against any action taken by a third party against Grillex in respect of any such infringement.
15.3 The Customer agrees that Grillex may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Grillex has created for the Customer.
16. Default and Consequences of Default
16.1 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 Grillex’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes Grillex any money the Customer shall indemnify Grillex from and against all costs and disbursements incurred by Grillex in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Grillex’s contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies Grillex may have under this Contract, if a Customer has made payment to Grillex, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Grillex under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
16.4 Without prejudice to any other remedies Grillex may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Grillex may suspend or terminate the supply of Goods/Services to the Customer. Grillex will not be liable to the Customer for any loss or damage the Customer suffers because Grillex has exercised its rights under this clause.
16.5 Without prejudice to Grillex’s other remedies at law Grillex shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Grillex shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Grillex becomes overdue, or in Grillex’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Grillex;
(c) the Customer 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 Customer or any asset of the Customer.
17.1 Either party may, cancel these terms and conditions or cancel provision of the Goods/Services:
(a) if there is no Contract term specified, at any time by giving thirty (30) days’ notice to the other party;
(b) if a Contract term is specified, at any time after the end of the Contract term by giving thirty (30) days’ notice to the other party; and
(c) failure to give notice of intention to cancel at least thirty (30) days prior to the expiration date of the Contract term, the Contract term shall automatically renew on a monthly basis, unless cancelled by way of the Customer providing Grillex with thirty (30) days’ notice.
17.2 Grillex may, in addition to their right to cancel under clause 17.1:
(a) do so at any time:
(i) prior to the Delivery of the Goods/Services, by giving notice to the Customer, in the event Grillex determine it is not technically, commercially or operationally feasible to provide the Services to the Customer; or
(ii) in the event the Customer materially breaches these terms and conditions, and such breach is not capable of remedy.
17.3 In the event of the premature termination of this Contract (including by notification from the Customer, (at least thirty (30) days prior to the expiration date of the Contract term), or as a result of default, but excluding any breach or termination of this Contract by Grillex):
(a) the Customer shall be responsible for the immediate payment of the following sums:
(i) all monies due and payable up to the date of cancellation, noting applicable rates may change if the fixed term is shorter than that noted in the quotation; and
(ii) all other sums owing by the Customer under this Contract (or any other Contract with the Customer) as a result of the default and cancellation of this Contract, including consequential damages and any and all loss of profits, costs, charges and expenses incurred by Grillex in connection with (and resulting from) the premature termination of this Contract, which shall be calculated at a minimum of thirty percent (30%) of the remainder of the Price under this Contract where a fixed term applies.
17.4 Except so far as clause 17.3 applies, on cancellation Grillex shall be entitled to:
(a) retain all monies paid to it under this Contract; and
(b) recover from the Customer any other monies due and owing under this Contract as at the date of cancellation.
17.5 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18.1 All emails, documents, images or other recorded information held or used by Grillex is Personal Information, as defined and referred to in clause 18.3, and therefore considered Confidential Information. Grillex 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”). Grillex acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by Grillex that may result in serious harm to the Customer, Grillex will notify the Customer 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 Customer by written consent, unless subject to an operation of law.
18.2 Notwithstanding clause 18.1, privacy limitations will extend to Grillex in respect of Cookies where transactions for purchases/orders transpire directly from Grillex’s website. Grillex 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 Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Grillex when Grillex sends an email to the Customer, so Grillex may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Customer 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 Grillex’s website.
18.3 The Customer agrees for Grillex 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 Customer in relation to credit provided by Grillex.
18.4 The Customer agrees that Grillex may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
18.5 The Customer consents to Grillex being given a consumer credit report to collect overdue payment on commercial credit.
18.6 The Customer agrees that personal credit information provided may be used and retained by Grillex 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 Customer’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 Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
18.7 Grillex may give information about the Customer 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 Customer including credit history.
18.8 The information given to the CRB may include:
(a) Personal Information as outlined in 18.3 above;
(b) name of the credit provider and that Grillex is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’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 Customer no longer has any overdue accounts and Grillex has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Grillex, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.9 The Customer shall have the right to request (by e-mail) from Grillex:
(a) a copy of the Personal Information about the Customer retained by Grillex and the right to request that Grillex correct any incorrect Personal Information; and
(b) that Grillex does not disclose any Personal Information about the Customer for the purpose of direct marketing.
18.10 Grillex will destroy Personal Information upon the Customer’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.
18.11 The Customer can make a privacy complaint by contacting Grillex via e-mail. Grillex 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Unpaid Seller's Rights
19.1 Where the Customer has left any item with Grillex for repair, modification, exchange or for Grillex to perform any other service in relation to the item and Grillex has not received or been tendered the whole of any monies owing to it by the Customer, Grillex shall have, until all monies owing to Grillex are paid:
(a) a lien on the item; and
(b) 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.
19.2 The lien of Grillex shall continue despite the commencement of proceedings, or judgment for any monies owing to Grillex having been obtained against the Customer.
20.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Grillex may have notice of the Trust, the Customer covenants with Grillex as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer 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 Customer will not without consent in writing of Grillex (Grillex will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
21.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which Grillex has its principal place of business, and are subject to the jurisdiction of the Bundaberg Courts in that state.
21.3 Subject to clause 14, Grillex shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Grillex of these terms and conditions (alternatively Grillex’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 Grillex may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
21.5 The Customer cannot licence or assign without the written approval of Grillex.
21.6 Grillex 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 Customer agrees and understands that they have no authority to give any instruction to any of Grillex’s sub-contractors without the authority of Grillex.
21.7 The Customer agrees that Grillex may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Grillex to provide Goods to the Customer.
21.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
21.9 Both parties warrant that they have the power to enter into 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.