Legacy Nautical

Terms and Conditions

Legacy Nautical Shipwright Perth Terms and Conditions

1. Definitions

1.1 “AJW” means A J Woodall Nominees Pty Ltd ATF The Helm Trust T/A A J Woodall Shipwright,
its successors and assigns or any person acting on behalf of and with the authority of A J Woodall
Nominees Pty Ltd ATF The Helm Trust T/A A J Woodall Shipwright.
1.2 “Client” means the person/s ordering the Works 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.
1.3 “Works” means all Works or Materials supplied by AJW to the Client at the Client’s
request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be
interchangeable for the other).
1.4 “Materials” shall mean Materials required to complete the Works or any other products
supplied by AJW to the Client at the Client’s request
from time to time.
1.5 “Vessel” shall mean the boat described in any documentation supplied by AJW to the
Client.
1.6 “Contract Price” means the Contract Price of the Works (as agreed between AJW and the
Client) specified (and shall include any adjustments made under the provisions contained in this
contract).
1.7 “Estimated Cost” means AJW’s best estimate of the cost pertaining to the Works.
1.8 “Estimated Period of Works” shall mean the approximate time frame that AJW deems to be
required to complete the Works.

2. Acceptance


2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and
severally, by these terms and conditions if the Client places an order for or accepts delivery of
any Works.
2.2 These terms and conditions may only be amended with AJW’s consent in writing and shall
prevail to the extent of any inconsistency with any other document or agreement between the Client
and AJW.
2.3 Unless mentioned elsewhere on any documentation, all dollar amounts shall be in
Australian currency.
2.4 The Client accepts and acknowledges that the Contract Price may be different from the
Estimated Cost, and if significantly greater, shall not be deemed as a breach of this agreement.
2.5 Notwithstanding any remedies available under the CCA, AJW shall not be liable for any
loss of income or other monetary gains where the
Vessel is inoperable due to the delay or non-arrival of any outside sourced components that are
beyond the control of AJW.
2.6 In the event that the Materials and/or Works provided by AJW 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 AJW and shall ensure payment is made by the due date irrespective of
whether the insurance claim is successful.

3. Change in Control


3.1 The Client shall give AJW 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 AJW as a
result of the Client’s failure to comply with this clause.

4. Contract Price and Payment


4.1 At AJW’s sole discretion the Contract Price shall be either:
(a) as indicated on invoices provided by AJW to the Client in respect of Works performed or
Materials supplied; or
(b) AJW’s Contract Price at the date of delivery of the Works according to AJW’s current pricelist;
or
(c) AJW’s quoted Contract Price (subject to clause 4.2) which shall be binding upon AJW provided
that the Client shall accept AJW’s quotation in writing within thirty (30) days.
4.2 AJW reserves the right to change the Contract Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or
specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable
difficulties (including, but not limited to, inclement weather conditions, work required for
pre-existing conditions that are not apparent on a visual inspection, prerequisite work by any
third party not being completed, delays in sourcing Materials to complete the Works, etc) which are
only discovered on commencement of the Works; or
(d) in the event of increases to AJW in the cost of labour or materials (including but not limited
to overseas transactions that may increase
as a consequence of variations in foreign currency rates of exchange and/or international freight
and insurance charges) which are beyond AJW’s control.
4.3 In the event of a variation as per clause 4.2 being executed, the Estimated Cost,
Contract Price and Estimated Period of Works will be varied accordingly.
4.4 At AJW’s sole discretion a non-refundable deposit may be required.
4.5 Time for payment for the Works being of the essence, the Contract Price will be payable
by the Client on the date/s determined by AJW, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with AJW’s specified progress payment schedule. Such
progress payment claims may include the reasonable value of authorised variations and the value of
any Materials delivered to the site but not yet installed; 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 Client by AJW.
4.6 AJW may submit a detailed payment claim at intervals not less than weekly for work
performed up to the end of each week. The value of work so performed shall include the reasonable
value of authorised variations and the value of Materials procured but not installed.
4.7 Payment may be made by cash, cheque, electronic/on-line banking, credit card (plus a
surcharge of up to two percent (2%) of the Contract
Price), or by any other method as agreed to between the Client and AJW.
4.8 Unless otherwise stated the Contract Price does not include GST. In addition to the
Contract Price the Client must pay to AJW an amount equal to any GST AJW must pay for any supply by
AJW under this or any other agreement for the sale of the Materials. 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 Contract Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Contract Price except where they are expressly included in the Contract Price.

5. Contract Price Calculation


5.1 The Contract Price shall be calculated in the following manner:
(a) the number of hours of work performed in carrying out the Works, multiplied by the rate of the
person performing the Works; (b) plus the cost of:
(i) any Materials, goods or equipment supplied in the course of the Works plus a mark-up of ten
percent (10%);
(ii) any services provided by subcontractors where applicable;
(iii) the value of any additional work that may arise from a variation as per clause 4.2; (iv) any
yard, shed or lease costs incurred by AJW;
(v) and additional costs associated with disruptions (including but not limited to, suspension of
the Works due to failure to comply with payment conditions).
(c) less the costs of any agreed reductions to the scope of the Works.

6. Estimated Cost


6.1 The Client accepts that an Estimated Cost is: (a) not a fixed price contract;
(b) based on:
(i) a visual only inspection;
(ii) a description of the Vessel provided by the Client; (iii) the scope of Works as agreed.
6.2 The Client accepts that accurate assessments to the extent of rot damage, material
degradation, fractures, contamination and infestations to the Vessel cannot be ascertained by a
visual inspection. While AJW can provide an Estimated Cost to remedy such conditions, the Client
shall be liable for the full payment of the costs associated with the remedial Works being
calculated by the time actually taken multiplied by
the applicable rate at the time.

7. Delivery of the Works


7.1 Subject to clause 7.2 it is AJW’s responsibility to ensure that the Works start as soon
as it is reasonably possible.
7.2 The Works commencement date will be put back and/or the completion date extended by
whatever time is reasonable in the event that AJW claims an extension of time (by giving the Client
written notice) where completion is delayed by an event beyond AJW’s control, including but not
limited to any failure by the Client to:
(a) make a selection; or
(b) have the Vessel ready for the Works; or
(c) notify AJW that the Vessel is ready.
7.3 AJW may deliver the Works by separate instalments. Each separate instalment shall be
invoiced and paid in accordance with the provisions in these terms and conditions.
7.4 Any time or date given by AJW to the Client is an estimate only. AJW shall not be liable
for any loss or damage whatsoever due to failure by
AJW to deliver the Works (or any part of them) promptly or at all, where due to circumstances
beyond the reasonable control of AJW.

8. Estimated Period of Works


8.1 The Estimated Period of Works is based on the assumption that all Materials, goods,
equipment, labour, weather conditions, the date of commencement and other contingencies are as
expected.
8.2 Changes to any condition to those mentioned in clause 8.1 may require a variation to the
Estimated Period of Works time frame for
completion.

9. General Risk


9.1 If AJW retains ownership of the Materials under clause 15 then:
(a) where AJW is supplying Materials only, all risk for the Materials shall immediately pass to the
Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the
Materials shall be deemed to have taken place immediately at the time that either:
(i) the Client or the Client’s nominated carrier takes possession of the Materials at AJW’s
address; or
(ii) the Materials are delivered by AJW or AJW’s nominated carrier to the Client’s nominated
delivery address (even if the Client is not present at the address).
(b) where AJW is to both supply and install Materials then AJW shall maintain a contract works
insurance policy until the Works are
completed. Upon completion of the Works all risk for the Works shall immediately pass to the
Client.
9.2 Notwithstanding the provisions of clause 9.1 if the Client specifically requests AJW to
leave Materials outside AJW’s premises for collection or to deliver the Materials to an unattended
location then such materials shall always be left at sole risk of the Client and it shall be the
Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that
such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the
Client’s expense.
9.3 In the case of an undisclosed or unknown pre-existing condition, AJW will immediately
advise the Client of the same and shall provide the
Client with an estimate for the full repair.
9.4 The Client acknowledges that AJW is only responsible for parts that are replaced by AJW
and does not at any stage accept any liability in respect of previous services and/or goods
supplied by any other third party that subsequently fail and found to be the source of the failure,
the Client agrees to indemnify AJW against any loss or damage to the Works, or caused by the goods,
or any part thereof howsoever arising.
9.5 Where AJW are required to tow a vessel, either on water or road, at any time, AJW shall
not be liable for (and the Client indemnifies AJW
against) any damages that may arise during towing unless it arises from the recklessness or wilful
misconduct of AJW or its employees.

10. Timber Risk

10.1 Timber is a natural product and as such may exhibit variations in texture, shade, colour,
surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations.
Whilst AJW will make every effort to match sales samples to the finished Materials AJW accepts no
liability whatsoever where such samples differ to the finished Materials supplied.
10.2 Timber is a hydroscopic material subject to expansion and contraction, therefore AJW will
accept no responsibility for gaps that may appear in the flooring and/or decking or other surfaces
during prolonged periods of extreme weather conditions.
10.3 The Client acknowledges that Materials supplied may: (a) fade or change colour over time;
and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.

11. Paint Risk


11.1 The Client acknowledges that Materials supplied may exhibit variations in shade, colour,
texture, surface and finish, and may fade or change colour over time. AJW 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.
11.2 AJW shall not be liable for inferior existing paintwork where AJW’s paint has bonded to
the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish.
11.3 AJW shall not be held liable for the quality of the Works if the Client does not follow
AJW’s recommendations as to the number of coats of paint required to obtain the final finish if the
Client chooses to accept a reduced Contract Price based on fewer coats of paint.

12. Dimensions, Plans and Specifications


12.1 All customary building industry tolerances shall apply to the dimensions and measurements
of the Materials unless AJW and the Client agree otherwise in writing.
12.2 Where the Client is to supply AJW with any design plans or specifications (including, but
not limited to CAD drawings) the Client shall be responsible for providing accurate data. AJW shall
not be liable whatsoever for any errors in the Materials that are caused by incorrect or
inaccurate data being supplied by the Client.
12.3 If the giving of an estimate or quotation for the supply of Materials involves AJW
estimating measurements and quantities, it shall be the responsibility of the Client to verify the
accuracy of AJW’s estimated measurements and quantities, before the Client places an order based on
such estimate or accepts such quotation.
12.4 Should the Client require any changes to AJW’s estimated measurements and quantities, the
Client shall request such changes in writing, in the case of an estimate before placing an order
based on that estimate and in the case of a quotation before acceptance of that quotation.

13. Client’s Responsibilities


13.1 The Client warrants that all information pertaining to the Vessel is true and accurate to
the best of the Client’s knowledge, information and belief.
13.2 AJW shall be entitled to rely on the accuracy of the disclosed information provided to AJW
in relation to the Vessel’s condition, tile, history, construction, surface treatments, and the use
of the Vessel.
13.3 The Client acknowledges that it is their sole responsibility to ensure the Vessel is
insured adequately or at all.
13.4 The Client shall be responsible for all equipment and personal affects on-board or
attached to the Vessel and shall not hold AJW liable for any loss or damage of the same unless due
to the negligence of AJW or its employees.

14. Testing of Vessel


14.1 AJW or its employees may test drive or carry out tests on the Vessel at AJW’s discretion
and may if requested by the Client collect or re- deliver the Vessel when nominated by the Client.
AJW will not be liable for (and the Client indemnifies AJW) any damages caused to, or by, the
Vessel during such tests, collecting or delivery unless it arises from the recklessness or wilful
misconduct of AJW or its employees.

15. Title


15.1 AJW and the Client agree that ownership of the Materials shall not pass until: (a) the
Client has paid AJW all amounts owing to AJW; and
(b) the Client has met all of its other obligations to AJW.
15.2 Receipt by AJW 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.
15.3 It is further agreed that:
(a) until ownership of the Materials passes to the Client in accordance with clause 15.1 that the
Client is only a bailee of the Materials and unless the Materials have become fixtures must return
the Materials to AJW on request.
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for AJW and
must pay to AJW the proceeds of any insurance in the event of the Materials being lost, damaged or
destroyed.
(c) the production of these terms and conditions by AJW shall be sufficient evidence of AJW’s
rights to receive the insurance proceeds direct from the insurer without the need for any person
dealing with AJW to make further enquiries.
(d) the Client must not sell, dispose, or otherwise part with possession of the Materials other
than in the ordinary course of business and for market value. If the Client sells, disposes or
parts with possession of the Materials then the Client must hold the proceeds of any such
act on trust for AJW and must pay or deliver the proceeds to AJW on demand.
(e) the Client should not convert or process the Materials 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 AJW and
must sell, dispose of or return the resulting product to AJW as it so directs.
(f) unless the Materials have become fixtures the Client irrevocably authorises AJW to enter any
premises where AJW believes the
Materials are kept and recover possession of the Materials.
(g) AJW may recover possession of any Materials in transit whether or not delivery has occurred.
(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise
give away any interest in the Materials while they remain the property of AJW.
(i) AJW may commence proceedings to recover the Contract Price of the Materials sold
notwithstanding that ownership of the Materials has not passed to the Client.

16. Personal Property Securities Act 2009 (“PPSA”)


16.1 In this clause financing statement, financing change statement, security agreement, and
security interest has the meaning given to it by the
PPSA.
16.2 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 Materials that have previously been supplied and that will be
supplied in the future by AJW to the Client.
16.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to
be complete, accurate and up-to-date in all respects) which AJW 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 16.3(a)(i) or 16.3(a)(ii);
(b) indemnify, and upon demand reimburse, AJW 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 Materials charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior
written consent of AJW;
(d) not register, or permit to be registered, a financing statement or a financing change statement
in relation to the Materials in favour of a third party without the prior written consent of AJW;
and
(e) immediately advise AJW of any material change in its business practices of selling the
Materials which would result in a change in the nature of proceeds derived from such sales.
16.4 AJW 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.
16.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4),
130, 132(3)(d) and 132(4) of the PPSA.
16.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of
the PPSA.
16.7 Unless otherwise agreed to in writing by AJW, the Client waives its right to receive a
verification statement in accordance with section 157 of the PPSA.
16.8 The Client shall unconditionally ratify any actions taken by AJW under clauses 16.3 to
16.5.
16.9 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.

17. Security and Charge


17.1 In consideration of AJW agreeing to supply the Materials, 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).
17.2 The Client indemnifies AJW from and against all AJW’s costs and disbursements including
legal costs on a solicitor and own client basis incurred in exercising AJW’s rights under this
clause.
17.3 The Client irrevocably appoints AJW and each director of AJW as the Client’s true and
lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17
including, but not limited to, signing any document on the Client’s behalf.

18. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)


18.1 The Client must inspect all Materials on delivery (or the Works on completion) and must
within seven (7) days of delivery notify AJW 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 Materials/Works as soon as reasonably possible after any such defect becomes
evident. Upon such notification the Client must allow AJW to inspect the Materials or to review the
Works provided.
18.2 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).
18.3 AJW acknowledges that nothing in these terms and conditions purports to modify or exclude
the Non-Excluded Guarantees.
18.4 Except as expressly set out in these terms and conditions or in respect of the
Non-Excluded Guarantees, AJW makes no warranties or other representations under these terms and
conditions including but not limited to the quality or suitability of the Materials/Works. AJW’s
liability in respect of these warranties is limited to the fullest extent permitted by law.
18.5 If the Client is a consumer within the meaning of the CCA, AJW’s liability is limited to
the extent permitted by section 64A of Schedule 2.
18.6 If AJW is required to replace any Materials under this clause or the CCA, but is unable to
do so, AJW may refund any money the Client has paid for the Materials.
18.7 If AJW is required to rectify, re-supply, or pay the cost of re-supplying the Works under
this clause or the CCA, but is unable to do so, then
AJW may refund any money the Client has paid for the Works but only to the extent that such refund
shall take into account the value of
Works and Materials which have been provided to the Client which were not defective.
18.8 If the Client is not a consumer within the meaning of the CCA, AJW’s liability for any
defect or damage in the Materials is: (a) limited to the value of any express warranty or warranty
card provided to the Client by AJW at AJW’s sole discretion; (b) limited to any warranty to which
AJW is entitled, if AJW did not manufacture the Materials;
(c) otherwise negated absolutely.
18.9 Subject to this clause 18, returns will only be accepted provided that: (a) the Client has
complied with the provisions of clause 18.1; and
(b) AJW has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Client’s cost (if that cost is not
significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is
possible.
18.10 Notwithstanding clauses 18.1 to 18.9 but subject to the CCA, AJW shall not be liable for
any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Materials;
(b) the Client using the Materials for any purpose other than that for which they were designed;
(c) the Client continuing to use any Materials after any defect became apparent or should have
become apparent to a reasonably prudent operator or user;
(d) interference with the Works by the Client or any third party without AJW’s prior approval; (e)
the Client failing to follow any instructions or guidelines provided by AJW;
(f) fair wear and tear, any accident, or act of God.
18.11 In the case of second hand Materials, unless the Client is a consumer under the CCA, the
Client acknowledges that it has had full opportunity to inspect the second hand Materials prior to
delivery and accepts them with all faults and that to the extent permitted by law no warranty is
given by AJW as to the quality or suitability for any purpose and any implied warranty, statutory
or otherwise, is expressly excluded. The Client acknowledges and agrees that AJW has agreed to
provide the Client with the second hand Materials and calculated the Contract Price of the second
hand Materials in reliance of this clause 18.11.
18.12 AJW may in its absolute discretion accept non-defective Materials for return in which case
AJW may require the Client to pay handling fees of up to ten percent (10%) of the value of the
returned Materials plus any freight costs.
18.13 Notwithstanding anything contained in this clause if AJW is required by a law to accept a
return then AJW will only accept a return on the conditions imposed by that law.

19. Intellectual Property


19.1 Where AJW has designed, drawn, written plans or a schedule of Works, or created any
products for the Client, then the copyright in all such designs, drawings, documents, plans,
schedules and products shall remain vested in AJW, and shall only be used by the Client at AJW’s
discretion.
19.2 The Client warrants that all designs, specifications or instructions given to AJW will not
cause AJW to infringe any patent, registered design or trademark in the execution of the Client’s
order and the Client agrees to indemnify AJW against any action taken by a third party against AJW
in respect of any such infringement.
19.3 The Client agrees that AJW may (at no cost) use for the purposes of marketing or entry
into any competition, any documents, designs, drawings, plans or products which AJW has created for
the Client.

20. Default and Consequences of Default


20.1 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
AJW’s sole discretion such interest shall compound monthly at such a rate) after as well as before
any judgment.
20.2 If the Client owes AJW any money the Client shall indemnify AJW from and against all costs
and disbursements incurred by AJW in
recovering the debt (including but not limited to internal administration fees, legal costs on a
solicitor and own client basis, AJW’s contract default fee, and bank dishonour fees).
20.3 Without prejudice to any other remedies AJW may have, if at any time the Client is in
breach of any obligation (including those relating to payment) under these terms and conditions AJW
may suspend or terminate the supply of Works to the Client. AJW will not be liable to the Client
for any loss or damage the Client suffers because AJW has exercised its rights under this clause.
20.4 Without prejudice to AJW’s other remedies at law AJW shall be entitled to cancel all or
any part of any order of the Client which remains
unfulfilled and all amounts owing to AJW shall, whether or not due for payment, become immediately
payable if:
(a) any money payable to AJW becomes overdue, or in AJW’s opinion the Client will be unable to make
a payment when it falls due;
(b) the Client becomes insolvent or bankrupt, 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in
respect of the Client or any asset of the Client.

21. Cancellation


21.1 AJW may cancel any contract to which these terms and conditions apply or cancel delivery
of Works at any time before the Works are commenced by giving written notice to the Client. On
giving such notice AJW shall repay to the Client any sums paid in respect of the Contract Price,
less any amounts owing by the Client to AJW for Works already performed. AJW shall not be liable
for any loss or damage whatsoever arising from such cancellation.
21.2 In the event that the Client cancels the delivery of Works the Client shall be liable for
any and all loss incurred (whether direct or indirect) by
AJW as a direct result of the cancellation (including, but not limited to, any loss of profits).
21.3 Cancellation of orders for products 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.

22. Privacy Act 1988


22.1 The Client agrees for AJW 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 AJW.
22.2 The Client agrees that AJW 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 years.
22.3 The Client consents to AJW being given a consumer credit report to collect overdue payment
on commercial credit.
22.4 The Client agrees that personal credit information provided may be used and retained by
AJW for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to
the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities
requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
22.5 AJW 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.
22.6 The information given to the CRB may include:
(a) personal information as outlined in 22.1 above;
(b) name of the credit provider and that AJW 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 AJW has
been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of
payments);
(g) information that, in the opinion of AJW, 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).
22.7 The Client shall have the right to request (by e-mail) from AJW:
(a) a copy of the information about the Client retained by AJW and the right to request that AJW
correct any incorrect information; and
(b) that AJW does not disclose any personal information about the Client for the purpose of direct
marketing.
22.8 AJW 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.
22.9 The Client can make a privacy complaint by contacting AJW via e-mail. AJW 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.

23. Unpaid Seller’s Rights


23.1 Where the Client has left any item with AJW for repair, modification, exchange or for AJW
to perform any other service in relation to the item and AJW has not received or been tendered the
whole of any monies owing to it by the Client, AJW shall have, until all monies owing to AJW 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.
23.2 The lien of AJW shall continue despite the commencement of proceedings, or judgment for
any monies owing to AJW having been obtained against the Client.

24. General


24.1 The failure by AJW to enforce any provision of these terms and conditions shall not be
treated as a waiver of that provision, nor shall it affect AJW’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.
24.2 These terms and conditions and any contract to which they apply shall be governed by the
laws of Western Australia in which AJW has its principal place of business, and are subject to the
jurisdiction of the courts in Western Australia.
24.3 Subject to clause 18, AJW 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 AJW of these terms and
conditions (alternatively AJW’s liability shall be limited to damages which under no circumstances
shall exceed the Contract Price of the Works).
24.4 The Client shall not be entitled to set off against, or deduct from the Contract Price,
any sums owed or claimed to be owed to the Client by
AJW nor to withhold payment of any invoice because part of that invoice is in dispute.
24.5 AJW may license or sub-contract all or any part of its rights and obligations without the
Client’s consent.
24.6 The Client agrees that AJW may amend these terms and conditions at any time. If AJW makes
a change to these terms and conditions, then that change will take effect from the date on which
AJW notifies the Client of such change. The Client will be taken to have accepted such changes if
the Client makes a further request for AJW to provide any Works to the Client.
24.7 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.
24.8 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.

A J Woodall Shipwright – Terms & Conditions of Trade © Copyright – EC Credit Control 1999 – 2014