Terms & Conditions

The use of this Website is subject to these Terms & Conditions (inclusive of Our standard Terms & Conditions of Trade for the supply of Goods and Services, Privacy Policy, Refund Policy any other documents referred to herein) which constitutes the full agreement between You and Us.

 

Please read these Terms & Conditions carefully before You use the Website.

 

By using the Website, You indicate that You have, effective upon the date on which You have used the Website, read, accepted and agreed to be bound by these Terms & Conditions.

 

If You do not agree with these Terms & Conditions, You should cease using the Website immediately.

 

Definitions

“Agreement” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Agreement.

 

“We”, “Us”, “Our” or “Ourselves”” means Somerton Soil Pty Ltd T/A Somerton Garden & Concrete, its successors and assigns or any person acting on behalf of and with the authority of Somerton Soil Pty Ltd T/A Somerton Garden & Concrete.

 

“You”, “Your” or “Yourself”” means any person/s (end user) being of the legal age of eighteen (18) years.

 

“Incidental item(s)” means goods and/or services that may be purchased or sold through this Website to be supplied and/or provided by the Seller to You, as specified on Our Website.

 

“Website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.

 

“Prohibited Content” means any content on any advertising media that:

 

"Personal Information" means any information that identifies or can be used to identify You, directly or indirectly. Examples of Personal Information include, but are not limited to, first and last name, date of birth, email address, gender, occupation, or other demographic information.

 

"Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Agreement, a party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, Seller information and pricing details.

 

Acceptance

We reserve the right to change any of the Terms & Conditions displayed on this Website (including our Privacy Policy) at any time by notifying You through this Website that We have done so. By continuing to use this Website it shall be deemed that You agree to be bound by the amended terms and conditions as notified and posted on the Website.

 

If You intend to transact through this Website (i.e. purchase goods and/or services) then You warrant that You are at least 18 years of age, that You have the power to enter into this Agreement and You acknowledge that this Agreement creates binding and valid legal obligations upon You.

 

You are bound by the Terms & Conditions of Use and the Terms and Conditions of Trade.

 

Compliance with Laws

You represent and warrant that Your use of this Website will comply with all applicable laws and regulations (including but not limited to, EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”) and the Australian Privacy Policy Act 1988 (including the Privacy Amendment (Notifiable Data Breaches) Act 2017) or any other applicable laws.

 

Privacy Policy

We are committed to protecting Your Privacy in accordance with Australian Privacy Principles. We also recognise that when You choose to provide Us information about Yourself that You trust Us to act responsibly and in Your best interests therefore We have the following policies in place to protect Your personal information.

 

Storing Your Information

We will take all reasonable steps to ensure that Your information held by Us is accurate up-to-date, complete, applicable, is not misleading and will only be used for the purposes stated in this document and/or Our Privacy Policy. We will maintain security safeguards to protect Your information and will take all reasonable steps to ensure that Your information is not disclosed to any unauthorised person or entity.

 

Securing Your Information

When making a transaction through this Website Your information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that Your information can not be read by or altered by outside influences.

 

Information We Collect

When You request Goods or Services We may collect Personal Information supplied by You when You complete an online form in order to facilitate the purchase of Goods and/or Services. Such information will enable Us to process Your transactions efficiently, analyse our Website services and enable Us to provide a higher level of customer service (which may include informative or promotional activities).

We may also collect the following information/tracking data for statistical purposes and to help Us understand how to make Our Website more available and user friendly for You and to measure the success of any advertising activities We may undertake:

 

Information We Release

We will only release information about You as authorised by Yourself, required by law or where required in order for Us to provide Goods or Services to Yourself e.g. to third party suppliers, or delivery companies. Where supplied to such third parties the information provided will only be sufficient for the third party to perform their services and may not be used by them for any other purpose.

 

We will not release Your information for any purpose which You could reasonably expect us not to release the information.

 

Except as detailed above We do not share, give, sell, rent, or lease information to third parties and Your Personal Information will only be disclosed to those employees within Our organisation who have a need to know in order to ensure You are provided with information about Our products and Services or to request Goods and Services through this Website.

 

Under the Privacy Act legislation, you can ask to see any information We may hold about You and You also have the right to have any inaccuracies in the same corrected by Us. We will comply with any such requests to the extent required by the Privacy Act legislation within fourteen (14) days of the receipt of Your request. We may ask you to verify your identity in order to help us respond efficiently to your request.

 

Other Data Protection Rights

You may have the following data protection rights:

 

Questions & Concerns

If You have any questions or comments, or if You have a concern about the way in which We have handled any privacy matter, please contact Us via email, post or the contact section of this website.

Attention: Privacy Officer

Postal Address:

150 Somerton Rd

Somerton VIC

3062 Australia

 

Cookies

We and Our partners may use various technologies to collect and store information when You use this Website, and this may include using cookies and similar tracking technologies, such as pixels and web beacons. These web beacons track certain behavior such as whether the email sent through the Website was delivered and opened and whether links within the email were clicked. They also allow Us to collect information such as the recipient’s:

 

These cookies do not read Your hard drive but may be stored on Your hard drive to enable Our Website to recognise You when You return to the same.

 

Mailing Lists

If at any time You are on a mailing list of Ours then You may request to be removed from the same and We will comply with Your request if there is no unsubscribe button provided then please contact Us with Your request using the “Contact” section of this Website.

 

Returns, Damaged or Defective Goods

Our policy in relation to Returns, Damaged or Defective Goods shall be as specified in Our standard Terms and Conditions of Trade. We shall not accept returns for change of mind or if You make a wrong decision unless due to our negligence or incorrect information supplied by Ourselves.

 

Copyright and Trademarks

The contents of this Website are at all times the copyright or trademark property of either Ourselves, Our suppliers or linked third parties and You may not distribute, reproduce, display, publish any trademark or other content of this Website for any purpose whatsoever without the prior written approval of Us, Our suppliers or linked third parties (each as applicable). Furthermore, You agree to indemnify Us against any claims, costs, damages or losses incurred by Us should You fail to comply with this clause.

 

Advertisers and Linked Sites

The display on Our Website of any advertiser or the provision of a link to third party Websites does not constitute Our endorsement of either the advertiser or third-party provider or any of their Website content (including but not limited to, any Prohibited Content) or business practices. As We do not have any control of the content of any third-party Websites, access to such Websites is at Your sole risk and We recommend that You thoroughly review the terms and conditions of use and the Privacy policies of any third-party Website immediately once You access such a Website.

 

We shall accept no liability in regards to any dealings, promotions or activities between Yourself and advertisers or third-party providers.

 

Specifications and Information

Specifications and information provided on this Website are given in good faith based on Our knowledge, experience, or information provided to Us by manufacturers and/or suppliers, or derived from sources believed to be accurate at the time the information is received by Us, therefore it is recommended if You have any concerns as to the suitability of Goods or Services provided through this Website in respect of the use of the Goods or Services or their suitability for a particular use that You contact Us or seek external professional opinion.

 

You acknowledge and accept that colours of items displayed on the Website may not reflect the true and actual colour of such items as this may be affected by external influences such as the quality of images supplied to Us for use, or the quality, age or settings on Your monitor. If colour is a major factor in Your decision making We recommend You contact Us before purchase.

 

On-Line Ordering

Display on this Website does not guarantee the availability of any particular Good(s) therefore all orders placed through this Website shall be subject to confirmation of acceptance by Us. Orders for Services shall be subject to confirmation of suitable timeframes between You and Ourselves for provision of the Services.

 

Continuous Service

Due to the inherent nature of Websites We cannot guarantee uninterrupted or continuous availability of this Website and You accept that the Website may also be unavailable from time to time for maintenance or scheduled upgrades. Where able We shall give You advanced warning of the same. We shall accept no liability in relation to Website downtime whether scheduled or otherwise.

 

Termination of Use

These terms and Your access to Our Website may be terminated by Us (at Our sole discretion) at any time without notice or any requirement to give You a reason why. In the event of termination under this clause We shall have no liability to You whatsoever (including for any consequential or direct loss You may suffer).

 

Jurisdiction

This Website (excluding any linked third-party sites) is controlled by Us from Our principal business premises in Australia. Our servers are located in: North America, Europe, Asia & Australia, so Your information may be transferred to, stored, or processed in North America, Europe, Asia & Australia. It can be accessed from countries around the world to the extent permitted by the Website. As each country has laws that may differ from Australia, by accessing this Website, You agree that the laws and statutes of Australia shall apply to any dealings, actions or claims arising out of, or in relation to, this Agreement, or Your use of this Website, irrespective of any conflict with any laws and statutes applicable to Your country of domicile.

 

In addition, We or Our subcontractors may use cloud technology to store or process Personal Information, which may result in storage of data outside Australia. It is not practicable for Us to specify in advance which country will have jurisdiction over this type of offshore activity. All of Our subcontractors, however, are required to comply with the Australian Privacy Act in relation to the transfer or storage of Personal Information overseas.

 

You further acknowledge and agree that the filing of a claim against Us (if any) must be made in the State of Victoria in which our business premises in Australia is domiciled, and that any legal proceedings will be conducted in English.

 

We make no representation that Goods or Services offered through this Website are appropriate, available or suitable for use in countries outside of Australia, and accessing any material or content from, or through, this Website which is illegal in Your country of domicile is strictly prohibited.

 

We make no representation that Goods or Services offered through this Website are appropriate, available or suitable for use in countries outside of Australia, and accessing any material or content from, or through, this Website which is illegal in Your country of domicile is strictly prohibited.

 

General

The failure by either contracting 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.

 

We shall be under no liability whatsoever to You for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by You arising out of a breach by Us of these terms and conditions (alternatively Our liability shall be limited to damages which under no circumstances shall exceed the Fee of the Services).

 

Feedback

Feedback is provided for the purpose of facilitating trading by You on Our Website. Feedback provided on other parties must not contain offensive, defamatory, retaliatory or inappropriate language or content. We may remove any feedback that is considered to be offensive, defamatory, retaliatory or inappropriate.

 

You may only give feedback that relates to a specific transaction. You must not post feedback on a transaction that does not relate to that specific transaction.

 

You must not post feedback about Yourself or include any contact details or Personal Information in Your feedback.

 

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.

 

 

Privacy Manual

 

 

1. Introduction

From 12 March 2014, the Australian Privacy Principles (APP’s) replaced the National Privacy Principles and Information Privacy Principles and were inserted into the Privacy Act 1988 (“the Act”) at schedule 1. These principles apply to private sector organisations who deal with information relating to individuals.  This legislation is designed to protect personal information about individuals and sets in place a framework and guidelines about how to deal with this information. APP 1.3 requires an APP entity to have a clearly expressed and up-to-date APP privacy policy describing how it manages personal information. Further in February 2018, the Notifiable Data Breaches (“NDB”) Scheme was introduced under Part IIIC of the Act. The NDB establishes requirements and compliance mechanisms for entities in responding to data breaches.

 

As at 25 May 2018, the EU General Data Protection Regulation (“GDPR”) was introduced providing increased transparency for data protection for all businesses transferring data to the Europe Union. While the GDPR and the APP share some similarities, Somerton Garden & Concrete is providing robust privacy policies and procedures for its staff and clients. This includes ensuring that it conforms to all required APP’s including the provision of a clearly expressed and readily available Privacy Policy. This is completed by the provision of this Privacy Policy Manual.

 

An APP privacy policy is a key tool for meeting APP 1’s requirements.

 

To assist with this compliance, Somerton Garden & Concrete ensures that all of its staff members adhere to these policies and procedures. Any breaches of these policies and procedures must be reported to the relevant staff member’s manager or supervisor immediately so that any appropriate measures can be taken to mitigate any issues surrounding an identified breach.

 

Every staff member of Somerton Garden & Concrete who handles personal information is required to have an understanding of the Australian Privacy Principles (APP’s), the Act and the GDPR, where necessary. Where a more detailed knowledge of Somerton Garden & Concrete’s rights and responsibilities is required, the Privacy Officer will be able to provide assistance.

 

All staff are encouraged to discuss privacy issues with the nominated Privacy Officer.

 

2. Review

Formal review of this privacy policy shall be undertaken on a 6 monthly basis with the details of this review recorded by the Privacy Officer.

 

3. Australian Privacy Principles (APP’s)

The Privacy Act 1988 and the Credit Reporting Privacy Code 2014 places obligations and responsibilities on employers and employees to ensure that information collected from individuals is collected, retained and used in line with the APP’s. Somerton Garden & Concrete shall abide by the following APP’s at all times:

 

APP No.

Part 1 – Consideration of personal information privacy

APP 1  Open and transparent management of personal information

APP 2  Anonymity and pseudonymity

 

Part 2 – Collection of personal information

APP 3  Collection of solicited personal information

APP 4  Dealing with unsolicited personal information

APP 5  Notification of the collection of personal information

 

Part 3 – Dealing with personal information

APP 6  Use or disclosure of personal information

APP 7  Direct marketing

APP 8  Cross-border disclosure of personal information

APP 9  Adoption, use or disclosure of government related identifiers

 

Part 4 – Integrity of personal information

APP 10 Quality of personal information

APP 11 Security of personal information

 

Part 5 – Access to, and correction of, personal information

APP 12 Access to personal information

APP 13 Correction of personal information

 

Further information regarding the APP’s can be obtained from the office of the Australian Information Commissioner at www.oaic.gov.au.

 

A copy of the APP’s as produced by the Office of the Australian Information Commissioner is attached as Appendix A. The NDB forms part of the Act as a new implemented scheme for companies to advise its clients, in the event of a potential data breach that is likely to result in serious harm to any individuals whose personal information is involved in the breach. Somerton Garden & Concrete’s Privacy Policy Manual provides a data breach preparation and response to any potential breaches to ensure compliance under the NDB and the Act.

 

4. General Data Protection Regulation (“GDPR”)

 

Upon the implementation of the GDPR on 25 May 2018, Somerton Garden & Concrete has updated the way they use and collect personal data from residents in the EU. This involves, identifying Somerton Garden & Concrete’s data protection officer (“Privacy Officer”), how clients can contact the Privacy Officer and identifying the process of transferring client’s personal information. Further, the implementation of cookies notices on Somerton Garden & Concrete’s website has been activated to ensure Somerton Garden & Concrete’s clients have adequate protection in providing consent to Somerton Garden & Concrete in withholding their personal data.

 

5. Types of Personal Information That is Collected, Used, Processed & Held

Somerton Garden & Concrete collects personal information for a variety of reasons. This personal information will be collected in the normal course of business and will relate to Goods and/or Services that are provided by Somerton Garden & Concrete to clients. This information collected will be done so in the course of business where the client is a customer of Somerton Garden & Concrete or when the client acts as a guarantor for another person or company that is a client of Somerton Garden & Concrete. Somerton Garden & Concrete will not collect information that is not relevant or sensitive in nature unless it is required in the normal course of business.

 

The personal information that is collected may include, but will not be limited to the following;

(1) Full name

(2) Address

(3) Date of birth

(4) Credit references if applicable

(5) Publicly available information which relate to the clients activities in Australia

(6) Any information recorded in the National Personal Insolvency Index

(7) Driver’s license details

(8) Medical insurance details (if applicable)

(9) Electronic contact details including email, Facebook and Twitter details

(10) Next of kin and other contact information where applicable

 

The client acknowledges that provided the correct Privacy Act disclosures have been made that Somerton Garden & Concrete may conduct a credit report on the client for the purposes of evaluating the credit worthiness of the client.

 

Somerton Garden & Concrete ensures that all personal information is held in a secure manner. Where applicable and to the best of Somerton Garden & Concrete’s knowledge all computers or servers have the required security protections in place to safeguard and protect any personal information that is held by Somerton Garden & Concrete. 

 

We use cookies on our website. Cookies are small files which are stored on your 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. In so far as those cookies are not strictly necessary for the provision of Somerton Garden & Concrete’s services, we will ask you to consent to our use of cookies when you first visit our website.

 

In the event that you utilise our website for the purpose of purchases/orders, Somerton Garden & Concrete agrees to display reference to cookies and /or similar tracking technologies, such as pixels and web beacons (if applicable), and requests consent for Somerton Garden & Concrete collecting your personal information which may include:

 

(1) IP address, browser, email client type and other similar details;

(2) Tracking website usage and traffic; and

(3) Reports are available to Somerton Garden & Concrete when Somerton Garden & Concrete sends an email to the client, so Somerton Garden & Concrete may collect and review that information.

 

If you consent to Somerton Garden & Concrete’s use of cookies on our website and later wish to withdraw your consent, you may manage and control Somerton Garden & Concrete’s privacy controls through your browser, including removing cookies by deleting them from your browser history when you leave the site.

 

Somerton Garden & Concrete also regularly conducts internal risk management reviews to ensure that its infrastructure (to the best of its knowledge) is secure and any identifiable risks have been mitigated as much as they can be in the normal course of business.

 

6. Procedures and responding to potential breaches of Privacy

In accordance with the NDB Somerton Garden & Concrete is aware of its responsibilities to notify its clients in the event of a potential data breach that may cause serious harm to clients. Further, in the event the client is located in the Europe Union (“EU”), Somerton Garden & Concrete acknowledges that any potential data breaches will be safeguarded by the provisions of the GDPR.

 

Somerton Garden & Concrete will collect and process personal information in the normal course of business.  This personal information may be collected and processed, but is not limited to, any of the following methods;

 

(1) Credit applications forms

(2) Work authorisation forms, quote forms or any other business documentation

(3) Publicly available databases that hold information

(4) Websites that detail information such as Sensis, Facebook, Google etc

(5) By verbally asking you for information as part of normal business practices

 

Where relevant to data processing as per the GDPR, and in particular where Somerton Garden & Concrete uses new technologies, and takes into account the nature, scope, context and purposes of processing and considers that the data processing is likely to result in a high risk to the rights and freedoms of natural persons, the Privacy Officer shall, prior to the processing of personal information, carry out an assessment of impact of the envisaged processing operations by way of a protection impact assessment. The data protection assessment will be required in instances whereby:

(1) a systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person;

(2) processing on a large scale of special categories of data referred to in Article 9(1) of the GDPR, or of personal data relating to criminal convictions and offences referred to in Article 10 of the GDPR; or

(3) a systematic monitoring of a publicly accessible area on a large scale.

 

The assessment shall be carried out in accordance with Article 35 (7) of the GDPR and carry out reviews of such data protection impact assessments when there is any change of the risk associated with the processing of personal information.

 

As a client of Somerton Garden & Concrete and agreeing to Somerton Garden & Concrete’s Terms and Conditions of Trade, which includes Somerton Garden & Concrete’s privacy statement you hereby agree and consent to the provisions of this Privacy Policy Manual, including but not limited to the collection, processing, use and disclosure of your personal information. In the event that you withdraw your agreement and consent to any of the above use, processing collection and disclosure, then Somerton Garden & Concrete warrants that any request by you to withdraw your consent or agreement shall be deemed as confirmation by you to cease any and/or all collection use, processing and disclosure of your personal information. You may make a request to withdraw your consent at anytime by telephone and/or by email to the following contact details;

 

The Privacy Officer

Somerton Garden & Concrete

150 Somerton Road

Somerton VIC 3062

adam@somertongarden.com.au

 

Somerton Garden & Concrete will ensure that any Information that is to be obtained from you is done so verbally or using Somerton Garden & Concrete’s prescribed forms which;

Authorise Somerton Garden & Concrete:

 

(1) To collect personal information; and

(2) Inform the individual what personal information is being collected; and

(3) Inform the individual why (the purpose) the personal information is being collected; and

(4) Inform the individual why & when personal information will be disclosed to 3^rd

It is the responsibility of Somerton Garden & Concrete to ensure that any personal information obtained is as accurate and up to date as possible and information is only collected by lawful means in accordance with the Act and relevantly, in accordance with the GDPR.

 

7. Purposes For Which Information Is Collected, Held, Used And Disclosed

 

Disclosure to Third Parties

Somerton Garden & Concrete will not pass on your personal information to third parties without first obtaining your consent.

 

In accordance with the Act, including the GDPR (where relevant), Personal Information can only be used by Somerton Garden & Concrete for the following purposes:

1. Access a credit reporter’s database for the following purposes:

(a) To assess your application for a credit account; or

(b) To assess your ongoing credit facility; or

(c) To notify a credit reporter of a default by you (providing Somerton Garden & Concrete are a member of an approved OAIC External Dispute Resolution Scheme (“EDRS”) for consumer defaults); or

(d) To update your details listed on a credit reporter’s database; or

 

2. Check trade references noted on the prescribed form for the following purposes:

(a) To assess your application for a credit account; or

(b) To assess your ongoing credit facility; or

(c) To notify a default (subject to 1(c) above).

 

3. Market Somerton Garden & Concrete’s products and services.

 

4. Any other day to day business purposes such as complying with ATO requirements, managing accounting returns or legal matters.

 

Relationship with Credit Reporter - In the event that notification of a default has been reported to a Credit Reporter and your credit file has been updated (including any changes to the balance outstanding or contact details), then the Credit Reporter shall be notified as soon as practical of any such changes.

 

Somerton Garden & Concrete will only gather information for its particular purpose (primary purpose).  In accordance with the Act, including the GDPR (where relevant), Somerton Garden & Concrete will not disclose this information for any other purpose unless this has been agreed to by both parties.

 

8. How An Individual May Access Personal Information Held, And How They May Seek Correction Of Such Information

 

You shall have the right to request from Somerton Garden & Concrete a copy of all the information about you that is retained by Somerton Garden & Concrete.  You also have the right to request (by telephone and/or by email) that Somerton Garden & Concrete correct any information that is incorrect, outdated or inaccurate.

 

Any requests to receive your personal information or to correct personal information should be directed to the following contact details;

 

The Privacy Officer

Somerton Garden & Concrete

150 Somerton Road

Somerton VIC 3062

adam@somertongarden.com.au

 

Somerton Garden & Concrete will destroy personal information upon your request (by telephone and/or by email) or when the personal information is no longer required. The exception to this is if the personal information is required in order for Somerton Garden & Concrete to fulfil their performance of services or is required to be maintained and/or stored in accordance with the law.

 

9. How An Individual May Complain About A Breach Of The APP, And How The Complaint Will Be Dealt With

 

You can make a complaint to Somerton Garden & Concrete’s internal dispute resolution team (‘IDR’) regarding an interference with and/or misuse of your personal information by contacting Somerton Garden & Concrete via telephone or email.

 

Any complaints should be directed to the following contact details in the first instance;

 

The Privacy Officer

Somerton Garden & Concrete

150 Somerton Road

Somerton VIC 3062

adam@somertongarden.com.au

 

In your communication you should detail to Somerton Garden & Concrete the nature of your complaint and how you would like Somerton Garden & Concrete to rectify your complaint.

 

We will respond to that complaint within 7 days of receipt and will take all reasonable steps to make a decision as to the complaint within 30 days of receipt of the complaint.

 

We will disclose information in relation to the complaint to any relevant credit provider and or Credit Reporting Body that holds the personal information the subject of the complaint.

 

In the event that you are not satisfied with the resolution provided, then you can make a complaint to the Information Commissioner on the OAIC website at www.oaic.gov.au

 

10. Will Personal Information Be Disclosed To Overseas Recipients

 

Somerton Garden & Concrete does not disclose information about the client to third party overseas recipients unless the client has provided its consent. Somerton Garden & Concrete will notify you if circumstances change regarding overseas disclosure and will comply with the Act and the GDPR in all respects.

 

Unless otherwise agreed, Somerton Garden & Concrete agrees not to disclose any personal information about the client for the purpose of direct marketing. You have the right to request (by telephone and/or by email) that Somerton Garden & Concrete does not disclose any personal information about you for the purpose of direct marketing.

 

11. Availability Of This Privacy Policy Manual

 

This Privacy Policy manual is available to all clients of Somerton Garden & Concrete.  It will be made available (where applicable) on Somerton Garden & Concrete’s website. 

 

This manual will also be available upon request at Somerton Garden & Concrete’s business premises and is available to be sent to you if required.

 

If you require a copy of this Privacy Policy please make a request utilising the following contact information in the first instance:

 

The Privacy Officer

Somerton Garden & Concrete

150 Somerton Road

Somerton VIC 3062

adam@somertongarden.com.au

 

12. Privacy Officer (Responsibilities)

 

Somerton Garden & Concrete has appointed an internal Privacy Officer to manage its privacy matters.  The name of this officer is available by making contact with Somerton Garden & Concrete.  The privacy officers duties include (but are not limited to) the following:

 

The Privacy Officer needs to be familiar with the APP’s. Educational material is available from the office of the Privacy Commissioner which explains what Somerton Garden & Concrete needs to know in order to comply with the Privacy Act.

 

If a person complains to the Privacy Commissioner that Somerton Garden & Concrete has breached their privacy, the Information Commissioner may contact the Privacy Officer to discuss the complaint, and to see whether there is any means of settling the matter. The Privacy Officer shall provide whatever assistance is necessary. The Privacy Officer may be asked to provide background information or identify the staff members who can do so.

 

Complaints

In the event that a complaint about privacy issues is received the Privacy Officer will:

(1) Take ownership of the complaint and ensure that it is dealt with in a timely manner.

(2) Acknowledge receipt of the complaint within 24 hours and advise the complainant of their rights.

(3) Fully investigate the complaint.

(4) Respond, with findings, to the complainant within 30 days of receipt.

(5) Keep a record of all complaints received for ongoing review of policies and procedures.

 

In the event that a complaint about privacy issues is received via a credit reporter the Privacy Officer will:

(1) Take ownership of the complaint and ensure that it is dealt with in a timely manner.

(2) Acknowledge receipt of the complaint to the credit reporter within 24 hours.

(3) Fully investigate the complaint.

(4) Respond, with findings, to the credit reporter within 7 days of receipt.

(5) Keep a record of all complaints received for ongoing review of policies and procedures.

 

APPENDIX A - INFORMATION PRIVACY PRINCIPLES                        

 

Part 1 – Consideration Of Personal Information Privacy

 

Australian Privacy Principle 1 – open and transparent management of personal information

1.1 The object of this principle is to ensure that APP entities manage personal information in an open and transparent way.

 

Compliance with the Australian Privacy Principles etc.

1.2 An APP entity must take such steps as are reasonable in the circumstances to implement practices, procedures and systems relating to the entity’s functions or activities that:

(a) will ensure that the entity complies with the Australian Privacy Principles and a registered APP code (if any) that binds the entity; and

(b) will enable the entity to deal with inquiries or complaints from individuals about the entity’s compliance with the Australian Privacy Principles or such a code.

 

APP Privacy policy

1.3 An APP entity must have a clearly expressed and up to date policy (the APP privacy policy) about the management of personal information by the entity.

1.4 Without limiting sub-clause 1.3, the APP privacy policy of the APP entity must contain the following information:

(a) the kinds of personal information that the entity collects and holds;

(b) how the entity collects and holds personal information;

(c) the purposes for which the entity collects, holds, uses and discloses personal information;

(d) how an individual may access personal information about the individual that is held by the entity and seek the correction of such information;

(e) how an individual may complain about a breach of the Australian Privacy Principles, or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint;

(f) whether the entity is likely to disclose personal information to overseas recipients;

(g) if the entity is likely to disclose personal information to overseas recipients—the countries in which such recipients are likely to be located if it is practicable to specify those countries in the policy.

 

Availability of APP privacy policy etc.

 

1.5 An APP entity must take such steps as are reasonable in the circumstances to make its APP privacy policy available:

(a) free of charge; and

(b) in such form as is appropriate.

 

Note: An APP entity will usually make its APP privacy policy available on the entity’s website. 

 

1.6 If a person or body requests a copy of the APP privacy policy of an APP entity in a particular form, the entity must take such steps as are reasonable in the circumstances to give the person or body a copy in that form.

 

Australian Privacy Principle 2 – anonymity and pseudonymity

2.1 Individuals must have the option of not identifying themselves, or of using a pseudonym, when dealing with an APP entity in relation to a particular matter.

2.2 Sub-clause 2.1 does not apply if, in relation to that matter:

(a) the APP entity is required or authorised by or under an Australian law, or a court/ tribunal order, to deal with individuals who have identified themselves; or

(b) it is impracticable for the APP entity to deal with individuals who have not identified themselves or who have used a pseudonym.

 

Part 2 – Collection Of Personal Information

 

Australian Privacy Principle 3 – collection of solicited personal information

 

Personal information other than sensitive information

 

3.1 If an APP entity is an agency, the entity must not collect personal information (other than sensitive information) unless the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities.

 

3.2 If an APP entity is an organisation, the entity must not collect personal information (other than sensitive information) unless the information is reasonably necessary for one or more of the entity’s functions or activities.

 

Sensitive information

 

3.3 An APP entity must not collect sensitive information about an individual unless:

(a) the individual consents to the collection of the information and:

(i) if the entity is an agency—the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities; or

(ii) if the entity is an organisation—the information is reasonably necessary for one or more of the entity’s functions or activities; or

(b) sub-clause 3.4 applies in relation to the information.

 

3.4    This sub-clause applies in relation to sensitive information about an individual if:

(a) the collection of the information is required or authorised by or under an Australian law or a court/tribunal order; or

(b) a permitted general situation exists in relation to the collection of the information by the APP entity; or

(c) the APP entity is an organisation and a permitted health situation exists in relation to the collection of the information by the entity; or

(d) the APP entity is an enforcement body and the entity reasonably believes that:

(i) if the entity is the Immigration Department—the collection of the information is reasonably necessary for, or directly related to, one or more enforcement related activities conducted by, or on behalf of, the entity; or

(ii) otherwise—the collection of the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities; or

(e) the APP entity is a non-profit organisation and both of the following apply:

(i) the information relates to the activities of the organisation;

(ii) the information relates solely to the members of the organisation, or to individuals who have regular contact with the organisation in connection with its activities. Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B.

 

Means of collection

3.5 An APP entity must collect personal information only by lawful and fair means.

3.6 An APP entity must collect personal information about an individual only from the individual unless:

(a) if the entity is an agency:

(i) the individual consents to the collection of the information from someone other than the individual; or

(ii) the entity is required or authorised by or under an Australian law, or a court/tribunal order, to collect the information from someone other than the individual; or

(b) it is unreasonable or impracticable to do so.

 

Solicited personal information

 

3.7 This principle applies to the collection of personal information that is solicited by an APP entity.

 

Australian Privacy Principle 4 – dealing with unsolicited personal information

 

4.1 If:

(a) an APP entity receives personal information; and

(b) the entity did not solicit the information;

the entity must, within a reasonable period after receiving the information, determine whether or not the entity could have collected the information under Australian Privacy Principle 3 if the entity had solicited the information.

 

4.2 The APP entity may use or disclose the personal information for the purposes of making the determination under sub-clause 4.1.

 

4.3 If:

(a) the APP entity determines that the entity could not have collected the personal information; and

(b) the information is not contained in a Commonwealth record;

the entity must, as soon as practicable but only if it is lawful and reasonable to do so, destroy the information or ensure that the information is de-identified.

 

4.4 If sub-clause 4.3 does not apply in relation to the personal information, Australian Privacy Principles 5 to 13 apply in relation to the information as if the entity had collected the information under Australian Privacy Principle 3.

 

Australian Privacy Principle 5 – notification of the collection of personal information

 

5.1 At or before the time or, if that is not practicable, as soon as practicable after, an APP entity collects personal information about an individual, the entity must take such steps (if any) as are reasonable in the circumstances:

(a) to notify the individual of such matters referred to in sub-clause 5.2 as are reasonable in the circumstances; or

(b) to otherwise ensure that the individual is aware of any such matters.

 

5.2 The matters for the purposes of sub-clause 5.1 are as follows:

(a) the identity and contact details of the APP entity;

(b) if:

(i) the APP entity collects the personal information from someone other than the individual; or

(ii) the individual may not be aware that the APP entity has collected the personal information;

the fact that the entity so collects, or has collected, the information and the circumstances of that collection;

(c) if the collection of the personal information is required or authorised by or under an Australian law or a court/tribunal order— the fact that the collection is so required  or authorised (including the name of the Australian law, or details of the court/ tribunal order, that requires or authorises the collection);

(d) the purposes for which the APP entity collects the personal information;

(e) the main consequences (if any) for the individual if all or some of the personal information is not collected by the APP entity;

(f) any other APP entity, body or person, or the types of any other APP entities, bodies or persons, to which the APP entity usually discloses personal information of the kind collected by the entity;

(g) that the APP privacy policy of the APP entity contains information about how the individual may access the personal information about the individual that is held by the entity and seek the correction of such information;

(h) that the APP privacy policy of the APP entity contains information about how the individual may complain about a breach of the Australian Privacy Principles, or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint;

(i) whether the APP entity is likely to disclose the personal information to overseas recipients;

(j) if the APP entity is likely to disclose the personal information to overseas recipients—the countries in which such recipients are likely to be located if it is practicable to specify those countries in the notification or to otherwise make the individual aware of them.

 

Part 3 – Dealing With Personal Information

 

Australian Privacy Principle 6 – use or disclosure of personal information

Use or disclosure

 

6.1 If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:

(a) the individual has consented to the use or disclosure of the information; or

(b) sub-clause 6.2 or 6.3 applies in relation to the use or disclosure of the information.

Note: Australian Privacy Principle 8 sets out requirements for the disclosure of personal information to a person who is not in Australia or an external Territory.

 

6.2 This sub-clause applies in relation to the use or disclosure of personal information about an individual if:

(a) the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:

(i) if the information is sensitive information—directly related to the primary purpose; or

(ii) if the information is not sensitive information—related to the primary purpose; or

(b) the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or

(c) a permitted general situation exists in relation to the use or disclosure of the information by the APP entity; or

(d) the APP entity is an organisation and a permitted health situation exists in relation to the use or disclosure of the information by the entity; or

(e) the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.

Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B.

 

6.3 This sub-clause applies in relation to the disclosure of personal information about an individual by an APP entity that is an agency if:

(a) the agency is not an enforcement body; and

(b) the information is biometric information or biometric templates; and

(c) the recipient of the information is an enforcement body; and

(d) the disclosure is conducted in accordance with the guidelines made by the Commissioner for the purposes of this paragraph.

6.4 If:

(a) the APP entity is an organisation; and

(b) subsection 16B(2) applied in relation to the collection of the personal information by the entity;

the entity must take such steps as are reasonable in the circumstances to ensure that the information is de-identified before the entity discloses it in accordance with sub-clause 6.1 or 6.2.

 

Written note of use or disclosure

 

6.5 If an APP entity uses or discloses personal information in accordance with paragraph 6.2(e), the entity must make a written note of the use or disclosure.

 

Related bodies corporate

6.6 If:

(a) an APP entity is a body corporate; and

(b) the entity collects personal information from a related body corporate;

this principle applies as if the entity’s primary purpose for the collection of the information were the primary purpose for which the related body corporate collected the information.

 

Exceptions

 

6.7 This principle does not apply to the use or disclosure by an organisation of:

(a) personal information for the purpose of direct marketing; or

(b) government related identifiers.

 

Australian Privacy Principle 7 – direct marketing

 

Direct marketing

 

7.1 If an organisation holds personal information about an individual, the organisation must not use or disclose the information for the purpose of direct marketing.

Note: An act or practice of an agency may be treated as an act or practice of an organisation, see section 7A.

 

Exceptions – personal information other than sensitive information

 

7.2 Despite subclause 7.1, an organisation may use or disclose personal information (other than sensitive information) about an individual for the purpose of direct marketing if:

(a) the organisation collected the information from the individual; and

(b) the individual would reasonably expect the organisation to use or disclose the information for that purpose; and

(c) the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation; and

(d) the individual has not made such a request to the organisation.

 

7.3 Despite subclause 7.1, an organisation may use or disclose personal information (other than sensitive information) about an individual for the purpose of direct marketing if:

(a) the organisation collected the information from:

(i) the individual and the individual would not reasonably expect the organisation to use or disclose the information for that purpose; or

(ii) someone other than the individual; and

(b) either:

(i) the individual has consented to the use or disclosure of the information for that purpose; or

(ii) it is impracticable to obtain that consent; and

(c) the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation; and

(d) in each direct marketing communication with the individual:

(i) the organisation includes a prominent statement that the individual may make such a request; or

(ii) the organisation otherwise draws the individual’s attention to the fact that the individual may make such a request; and

(e) the individual has not made such a request to the organisation.

 

Exception – sensitive information

 

7.4 Despite subclause 7.1, an organisation may use or disclose sensitive information about an individual for the purpose of direct marketing if the individual has consented to the use or disclosure of the information for that purpose.

 

Exception – contracted service providers

 

7.5 Despite subclause 7.1, an organisation may use or disclose personal information for the purpose of direct marketing if:

(a) the organisation is a contracted service provider for a Commonwealth contract; and

(b) the organisation collected the information for the purpose of meeting (directly or indirectly) an obligation under the contract; and

(c) the use or disclosure is necessary to meet (directly or indirectly) such an obligation.

 

Individual may request not to receive direct marketing communications etc.

 

7.6 If an organisation (the first organisation) uses or discloses personal information about an individual:

(a) for the purpose of direct marketing by the first organisation; or

(b) for the purpose of facilitating direct marketing by other organisations;

the individual may:

(c) if paragraph (a) applies—request not to receive direct marketing communications from the first organisation; and

(d) if paragraph (b) applies—request the organisation not to use or disclose the information for the purpose referred to in that paragraph; and

(e) request the first organisation to provide its source of the information.

 

7.7 If an individual makes a request under subclause 7.6, the first organisation must not charge the individual for the making of, or to give effect to, the request and:

(a) if the request is of a kind referred to in paragraph 7.6(c) or (d)—the first organisation must give effect to the request within a reasonable period after the request is made; and

(b) if the request is of a kind referred to in paragraph 7.6(e)—the organisation must, within a reasonable period after the request is made, notify the individual of its source unless it is impracticable or unreasonable to do so.

 

Interaction with other legislation

 

7.8 This principle does not apply to the extent that any of the following apply:

(a) the Do Not Call Register Act 2006;

(b) the Spam Act 2003;

(c) any other Act of the Commonwealth, or a Norfolk Island enactment, prescribed by the regulations.

 

Australian Privacy Principle 8 – cross-border disclosure of personal information

 

8.1 Before an APP entity discloses personal information about an individual to a person (the overseas recipient):

(a) who is not in Australia or an external Territory; and

(b) who is not the entity or the individual;

the entity must take such steps as are reasonable in the circumstances to ensure that the overseas recipient does not breach the Australian Privacy Principles (other than Australian Privacy Principle 1) in relation to the information.

 

Note: In certain circumstances, an act done, or a practice engaged in, by the overseas recipient is taken, under section 16C, to have been done, or engaged in, by the APP entity and to be a breach of the Australian Privacy Principles.

 

8.2 Sub-clause 8.1 does not apply to the disclosure of personal information about an individual by an APP entity to the overseas recipient if:

(a) the entity reasonably believes that:

(i) the recipient of the information is subject to a law, or binding scheme, that has the effect of protecting the information in a way that, overall, is at least substantially similar to the way in which the Australian Privacy Principles protect the information; and

(ii) there are mechanisms that the individual can access to take action to enforce that protection of the law or binding scheme; or

(b) both of the following apply:

(i) the entity expressly informs the individual that if he or she consents to the disclosure of the information, sub-clause 8.1 will not apply to the disclosure;

(ii) after being so informed, the individual consents to the disclosure; or

(c) the disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or

(d) a permitted general situation (other than the situation referred to in item 4 or 5 of the table in subsection 16A(1)) exists in relation to the disclosure of the information by the APP entity; or

(e) the entity is an agency and the disclosure of the information is required or authorised by or under an international agreement relating to information sharing to which Australia is a party; or

(f) the entity is an agency and both of the following apply:

(i) the entity reasonably believes that the disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body;

(ii) the recipient is a body that performs functions, or exercises powers, that are similar to those performed or exercised by an enforcement body.

 

Note: For permitted general situation, see section 16A.

 

Australian Privacy Principle 9 – adoption, use or disclosure of government related identifiers

 

Adoption of government related identifiers

 

9.1 An organisation must not adopt a government related identifier of an individual as its own identifier of the individual unless:

(a) the adoption of the government related identifier is required or authorised by or under an Australian law or a court/tribunal order; or

(b) sub-clause 9.3 applies in relation to the adoption.

Note: An act or practice of an agency may be treated as an act or practice of an organisation, see section 7A.

 

Use or disclosure of government related identifiers

 

9.2 An organisation must not use or disclose a government related identifier of an individual unless:

(a) the use or disclosure of the identifier is reasonably necessary for the organisation to verify the identity of the individual for the purposes of the organisation’s activities or functions; or

(b) the use or disclosure of the identifier is reasonably necessary for the organisation to fulfil its obligations to an agency or a State or Territory authority; or

(c) the use or disclosure of the identifier is required or authorised by or under an Australian law or a court/tribunal order; or

(d) a permitted general situation (other than the situation referred to in item 4 or 5 of the table in subsection 16A(1)) exists in relation to the use or disclosure of the identifier; or

(e) the organisation reasonably believes that the use or disclosure of the identifier is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body; or

(f) sub-clause 9.3 applies in relation to the use or disclosure.

Note 1: An act or practice of an agency may be treated as an act or practice of an organisation, see section 7A.

Note 2: For permitted general situation, see section 16A.

 

Regulations about adoption, use or disclosure

 

9.3 This sub-clause applies in relation to the adoption, use or disclosure by an organisation of a government related identifier of an individual if:

(a) the identifier is prescribed by the regulations; and

(b) the organisation is prescribed by the regulations, or is included in a class of organisations prescribed by the regulations; and

(c) the adoption, use or disclosure occurs in the circumstances prescribed by the regulations.

Note: There are prerequisites that must be satisfied before the matters mentioned in this sub-clause are prescribed, see subsections 100(2) and (3).

 

Part 4 – Integrity Of Personal Information

 

Australian Privacy Principle 10 – quality of personal information

 

10.1 An APP entity must take such steps (if any) as are reasonable in the circumstances to ensure that the personal information that the entity collects is accurate, up to date and complete.

10.2 An APP entity must take such steps (if any) as are reasonable in the circumstances to ensure that the personal information that the entity uses or discloses is, having regard to the purpose of the use or disclosure, accurate, up to date, complete and relevant.

 

Australian Privacy Principle 11 – security of personal information

 

11.1 If an APP entity holds personal information, the entity must take such steps as are reasonable in the circumstances to protect the information:

(a) from misuse, interference and loss; and

(b) from unauthorised access, modification or disclosure.

11.2 If:

(a) an APP entity holds personal information about an individual; and

(b) the entity no longer needs the information for any purpose for which the information may be used or disclosed by the entity under this Schedule; and

(c) the information is not contained in a Commonwealth record; and

(d) the entity is not required by or under an Australian law, or a court/tribunal order, to retain the information;

the entity must take such steps as are reasonable in the circumstances to destroy the information or to ensure that the information is de-identified.

 

Part 5 – Access To, And Correction Of, Personal Information

 

Australian Privacy Principle 12 – access to personal information

 

Access

 

12.1 If an APP entity holds personal information about an individual, the entity must, on request by the individual, give the individual access to the information.

 

Exception to access – agency

 

12.2 If:

(a) the APP entity is an agency; and

(b) the entity is required or authorised to refuse to give the individual access to the personal information by or under:

(i) the Freedom of Information Act; or

(ii) any other Act of the Commonwealth, or a Norfolk Island enactment, that provides for access by persons to documents;

then, despite sub-clause 12.1, the entity is not required to give access to the extent that the entity is required or authorised to refuse to give access.

 

Exception to access – organisation

 

12.3 If the APP entity is an organisation then, despite sub-clause 12.1, the entity is not required to give the individual access to the personal information to the extent that:

(a) the entity reasonably believes that giving access would pose a serious threat to the life, health or safety of any individual, or to public health or public safety; or

(b) giving access would have an unreasonable impact on the privacy of other individuals; or

(c) the request for access is frivolous or vexatious; or

(d) the information relates to existing or anticipated legal proceedings between the entity and the individual, and would not be accessible by the process of discovery in those proceedings; or

(e) giving access would reveal the intentions of the entity in relation to negotiations with the individual in such a way as to prejudice those negotiations; or

(f) giving access would be unlawful; or

(g) denying access is required or authorised by or under an Australian law or a court/ tribunal order; or

(h) both of the following apply:

(i) the entity has reason to suspect that unlawful activity, or misconduct of a serious nature, that relates to the entity’s functions or activities has been, is being or may be engaged in;

(ii) giving access would be likely to prejudice the taking of appropriate action in relation to the matter; or

(i) giving access would be likely to prejudice one or more enforcement related activities conducted by, or on behalf of, an enforcement body; or

(j) giving access would reveal evaluative information generated within the entity in connection with a commercially sensitive decision-making process.

 

Dealing with requests for access

 

12.4 The APP entity must:

(a) respond to the request for access to the personal information:

(i) if the entity is an agency—within 30 days after the request is made; or

(ii) if the entity is an organisation—within a reasonable period after the request is made; and

(b) give access to the information in the manner requested by the individual, if it is reasonable and practicable to do so.

 

Other means of access

 

12.5 If the APP entity refuses:

(a) to give access to the personal information because of sub-clause 12.2 or 12.3; or

(b) to give access in the manner requested by the individual;

the entity must take such steps (if any) as are reasonable in the circumstances to give access in a way that meets the needs of the entity and the individual.

 

12.6 Without limiting sub-clause 12.5, access may be given through the use of a mutually agreed intermediary.

 

Access charges

 

12.7 If the APP entity is an agency, the entity must not charge the individual for the making of the request or for giving access to the personal information.

 

12.8 If:

(a) the APP entity is an organisation; and

(b) the entity charges the individual for giving access to the personal information;

the charge must not be excessive and must not apply to the making of the request.

 

Refusal to give access

 

12.9 If the APP entity refuses to give access to the personal information because of sub-clause 12.2 or 12.3, or to give access in the manner requested by the individual, the entity must give the individual a written notice that sets out:

(a) the reasons for the refusal except to the extent that, having regard to the grounds for the refusal, it would be unreasonable to do so; and

(b) the mechanisms available to complain about the refusal; and

(c) any other matter prescribed by the regulations.

 

12.10 If the APP entity refuses to give access to the personal information because of paragraph 12.3(j), the reasons for the refusal may include an explanation for the commercially sensitive decision.

 

Australian Privacy Principle 13 – correction of personal information

 

Correction

 

13.1 If:

(a) an APP entity holds personal information about an individual; and

(b) either:

(i) the entity is satisfied that, having regard to a purpose for which the information is held, the information is inaccurate, out of date, incomplete, irrelevant or misleading; or

(ii) the individual requests the entity to correct the information;

the entity must take such steps (if any) as are reasonable in the circumstances to correct that information to ensure that, having regard to the purpose for which it is held, the information is accurate, up to date, complete, relevant and not misleading.

 

Notification of correction to third parties

 

13.2 If:

(a) the APP entity corrects personal information about an individual that the entity previously disclosed to another APP entity; and

(b) the individual requests the entity to notify the other APP entity of the correction;

the entity must take such steps (if any) as are reasonable in the circumstances to give that notification unless it is impracticable or unlawful to do so.

 

Refusal to correct information

 

13.3 If the APP entity refuses to correct the personal information as requested by the individual, the entity must give the individual a written notice that sets out:

(a) the reasons for the refusal except to the extent that it would be unreasonable to do so; and

(b) the mechanisms available to complain about the refusal; and

(c) any other matter prescribed by the regulations.

 

Request to associate a statement

 

13.4 If:

(a) the APP entity refuses to correct the personal information as requested by the individual; and

(b) the individual requests the entity to associate with the information a statement that the information is inaccurate, out of date, incomplete, irrelevant or misleading;

the entity must take such steps as are reasonable in the circumstances to associate the statement in such a way that will make the statement apparent to users of the information.

 

Dealing with requests

      13.5 If a request is made under sub-clause 13.1 or 13.4, the APP entity:

(a) must respond to the request:

(i) if the entity is an agency—within 30 days after the request is made; or

(ii) if the entity is an organisation—within a reasonable period after the request is made; and

(b) must not charge the individual for the making of the request, for correcting the personal information or for associating the statement with the personal information (as the case may be).

 

The information provided in this fact sheet is of a general nature. It is not a substitute for legal advice. 

 

 

Terms & Conditions of Trade 

 

1. Definitions

1.1 "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.

 

1.2 “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.

 

1.3 “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 using the Supplier’s 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 making enquiries via the website.

 

1.4 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Supplier 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 on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and

(d) includes the Customer’s executors, administrators, successors, and permitted assigns.

 

1.5 “Goods” means all Goods or Services supplied by the Supplier 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).

 

1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

 

1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Supplier and the Customer in accordance with clause 8 

 

1.8 “Supplier” means Somerton Soil Pty Ltd T/A Somerton Garden & Concrete, its successors and assigns or any person acting on behalf of and with the authority of Somerton Soil Pty Ltd T/A Somerton Garden & Concrete.

 

2. Acceptance

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 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

 

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

 

2.4 The Customer acknowledges that the supply:

(a) of Goods on credit shall not take effect until the Customer has completed a credit application with the Supplier and it has been approved with a credit limit established for the account. In the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery; and

(b) Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, the Supplier reserves the right to vary the Price with alternative Goods as per clause 8.2. The Supplier reserves the right to halt all Services until such time as the Supplier and the Customer agree to such changes. The Supplier shall not be liable to the Customer for any loss or damage the Customer suffers due to the Supplier exercising their rights under this clause.

 

2.5 Any advice, recommendation, information, assistance, or service provided by the Supplier in relation to Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on the Supplier’s own knowledge and experience and shall be accepted without liability on the part of the Supplier. Where such advice or recommendations are not acted upon then the Supplier shall require the Customer or their agent to authorise commencement of the Services in writing. The Supplier shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.

 

2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

3. Authorised Representatives

3.1 The Customer acknowledges that the Supplier shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to the Supplier, that person shall have the full authority of the Customer to order any Services, Goods and/or to request any variation thereto on the Customer’s behalf. The Customer accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier’s profit margin) in providing any Services, Goods or variation/s requested thereto by the Customer’s duly authorised representative.

 

4. Errors and Omissions

4.1 The Customer acknowledges and accepts that the Supplier 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 the Supplier 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 the Supplier in respect of the Services.

 

4.2 In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

 

4.3 In circumstances where the Customer is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) ("Customer Error"). The Customer must pay for all Goods it orders from the Supplier notwithstanding that such Goods suffer from a Customer Error and notwithstanding that the Customer has not taken or refuses to take Delivery of such Goods. The Supplier is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Customer Errors.

 

5. Change in Control

5.1 The Customer shall give the Supplier 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 the Supplier as a result of the Customer’s failure to comply with this clause.

 

6. On-Line Ordering

6.1 The Customer acknowledges and agrees that:

(a) the Supplier does not guarantee the website’s performance;

(b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by the Supplier;

(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;

(d) there are inherent hazards in electronic distribution, and as such the Supplier cannot warrant against delays or errors in transmitting data between the Customer and the Supplier including orders, and you agree that to the maximum extent permitted by law, the Supplier will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;

(e) when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by the Supplier and/or displayed on the website. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences; and

(f) if the Customer is not the cardholder for any credit card being used to pay for the Goods, the Supplier shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.

 

6.2 The Supplier reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of the Supplier’s business, or violated these terms and conditions.

 

7. Credit Card Information

 

7.1 The Supplier will:

(a) keep the Customer’s personal details, including credit card details for only as long as is deemed necessary by the Supplier;

(b) not disclose the Customer’s credit card details to any third party; and

(c) not unnecessarily disclose any of the Customer’s personal information, except in accordance with the Privacy Act (clause 20) or where required by law.

 

7.2 The Customer expressly agrees that, if pursuant to this Contract, there are any unpaid charges, other amounts due and outstanding by the Customer, the Supplier is entitled to immediately charge the Customer’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Customer pursuant to the terms of this Contract.

 

8. Price and Payment 

 

8.1 At the Supplier’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by the Supplier to the Customer; or

(b) the Supplier’s quoted Price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

 

8.2 The Supplier reserves the right to change the Price:

(a) if a variation to the Supplier’s quotation is requested or required (including as to the nature or quantity of the Goods (including size and weight), nature and location of the collection and/or delivery address, distance from the collection address to the delivery address, facilities available for loading or unloading, weather conditions or delays beyond the control of the Supplier, delivery times or dates, delay in returns or otherwise, etc.); or

(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to the site access, inaccurate measurements, plans or specifications supplied by the Customer, safety considerations, availability of equipment, additional labour where concrete is required to be manually wheel barrowed from the delivery vehicle, etc.) which are only discovered on commencement of the Services; or

(c) if during the course of the Services, the Goods cease to be available from the Supplier’s third-party suppliers, then the Supplier reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or

(d) in the event of increases to the Supplier 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 freight and insurance charges) which are beyond the Supplier’s control.

 

8.3 Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Customer shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier 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.

 

8.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:

(a) on or before delivery of the Goods;

(b) by way of instalments/progress payments in accordance with the Supplier’s payment schedule;

(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 the Supplier.

 

8.5 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Supplier.

 

8.6 The Supplier may in its discretion allocate any payment received from the Customer towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.

 

8.7 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 the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Customer must notify the Supplier in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Supplier investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Supplier placing the Customer’s account into default and subject to default interest in accordance with clause 1.

 

8.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier 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.

 

9. Delivery of Goods

 

9.1 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 the Supplier’s address; or

(b) the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.

 

9.2 At the Supplier’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.

 

9.3 The Supplier is authorised to deliver the Goods at the address given to the Supplier by the Customer for that purpose and it is expressly agreed that the Supplier shall be taken to have delivered the Goods in accordance with this Contract if at that address the Supplier obtains from any person a receipt or a signed Delivery docket for the Goods.

 

9.4 It is the intention of the Supplier and agreed by the Customer that:

(a) the Supplier will deliver the Goods at kerb alignment and Goods delivered inside the fence line are delivered at the Customer’s sole risk;

(b) for mini-mix concrete, if the discharge of the Goods is not completed within twenty (20) minutes after arrival on the site, a fee of three dollars ($3.00) plus GST per minute shall apply on weekdays and five dollars ($5.00) plus GST per minute shall apply on weekends and be shown as a variation in accordance with clause 8.2; and

(c) the Customer shall be responsible for:

(i) maintenance, cleaning, and the repair of entry and exit points from the site, over any third-party property or public roadway. The Supplier will accept no liability for any maintenance, cleaning or repair of entry and exit points from the site, including any local or state/government charges or fines relating to mud or debris on the roadway; and

(ii) any parking fees, penalties, fines, or infringements (whether imposed by Police, Council Traffic Officers or any Court) incurred by the Supplier as a result of the Customer’s failure to receive Delivery of the Goods at kerb alignment.

 

9.5 The Customer shall take Delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;

(a) such discrepancy in quantity shall not exceed 5%, and

(b) the Price shall be adjusted pro rata to the discrepancy.

 

9.6 Any time specified by the Supplier for Delivery of the Goods is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If the Supplier is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.

 

10. Risk

 

10.1 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.

 

10.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.

 

10.3 If the Customer requests the Supplier to leave Goods outside the Supplier’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.

 

10.4 The Customer acknowledges that:

(a) all descriptive specifications, illustrations, drawings, data, dimensions, ratings, and weights stated in the Supplier’s or 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 the Supplier; and

(b) variations of colour and texture are inherent in concrete. The Supplier shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between different batches of product;

(c) concrete is a porous material and as a consequence the Supplier cannot be held responsible for holes and pinholes, however numerous, that appear on the surface after completion of the Services;

(d) the Supplier can only visually check the concrete and cannot guarantee the mix is free of foreign objects. If the concrete is divided into more than one truck the Supplier cannot guarantee the texture is consistent between trucks; and

(e) Goods supplied may:

(i) exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations;

(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.

 

10.5 If the giving of an estimate or quotation for the supply of Goods involves the Supplier estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of the Supplier’s estimated measurements and quantities, before the Customer places an order based on such estimate or accepts such quotation.

 

10.6 Should the Customer require any changes to the Supplier’s estimated measurements and quantities, the Customer 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.

 

11. Access

 

11.1 The Customer shall ensure that the Supplier has clear and free access to effect Delivery of the Goods. The Supplier shall not be liable for any loss or damage to the Customer’s premises (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Supplier.

 

11.2 It is the responsibility of the Customer to ensure that access is suitable to accept the weight of laden trucks, unloading or other lifting equipment as may be deemed necessary by the Supplier.

 

12. Compliance with Laws

 

12.1 The Customer and the Supplier 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 or any other relevant safety standards or legislation pertaining to the Services.

 

12.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services (including, but not limited to, any taxes, duties, levies, customs, and duties (where applicable) etc.).

 

12.3 It is the Customer’s responsibility to ensure that all applicable work, health, and safety regulations are observed, and other appropriate steps taken in relation to the storage, handling, and use of the Goods and where information is supplied to the Customer on potential hazards relating to the Goods to bring such information to the attention of its employees, agents, sub-contractor, visitors, and customers. Without prejudice to the foregoing, it is also the Customer’s responsibility to provide safe facilities for the reception of the Goods into storage including the unloading of Goods from carriers. The Customer hereby indemnifies and shall keep indemnified the Supplier against all action claims, demands, summons, suits proceedings judgments, orders or decrees arising out of or in connection with any act or omission of the Customer in respect of its obligations pursuant to this clause.

 

12.4 In accordance with clauses 1, 12.2 and 12.3 safety processes are to be adopted when working with concrete and the following should be observed:

(a) when hardened concrete products are cut, drilled, saw routed, chased, sanded, broken up or ground, silica dust may be released. Breathing silica dust over time may lead to lung diseases including bronchitis, silicosis, and lung cancer;

(b) freshly mixed concrete may irritate eyes and skin and may cause dermatitis;

(c) protect yourself against breathing dust or getting it in your eyes, and against skin contact;

(d) when cutting, drilling, saw routing, chasing, sanding, breaking up or grinding hardened concrete products, use suitable dust extraction equipment, ware protective clothing and wear a P2 dust mask (AS/NZ 1715/1716) and eye protection (AS/NZ 1337);

(e) when working with freshly mixed concrete wear protective clothing, gloves (AS 2181) and eye protection (AS/NZS 1337);

(f) first Aid – eyes and skin, wash with plenty of water,

(g) dust breathed in, move straight to fresh air;

(h) clean up every day. Wash your work clothes often, it’s best not to put them in the same wash with other clothes;

(i) when working in an enclosed area wet and sweep or dry-vacuum all dust, collect solid waste and put in a covered container, wear all protective gear;

(j) follow local authority requirements for getting rid of waste.

 

13. Title

 

13.1 The Supplier and the Customer agree that ownership of the Goods shall not pass until:

(a) the Customer has paid the Supplier all amounts owing to the Supplier; and

(b) the Customer has met all of its other obligations to the Supplier.

 

13.2 Receipt by the Supplier 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.

 

13.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 1:

(a) the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request;

(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier 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 the Supplier and must pay or deliver the proceeds to the Supplier 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 the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;

(e) the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods;

(f) the Supplier 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 the Supplier;

(h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

 

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

 

14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS

 

14.2 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 that have previously been supplied and that will be supplied in the future by the Supplier to the Customer, and the proceeds from such Goods.

 

14.3 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 the Supplier 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 3(a)(i) or 14.3(a)(ii);

(b) indemnify, and upon demand reimburse, the Supplier 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 the Supplier;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of the Supplier;

(e) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.

 

14.4 The Supplier 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.

 

14.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

 

14.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

 

14.7 Unless otherwise agreed to in writing by the Supplier, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

 

14.8 The Customer must unconditionally ratify any actions taken by the Supplier under clauses 3 to 14.5.

 

14.9 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

15. Security and Charge

 

15.1 In consideration of the Supplier 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, and the Customer grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering the Supplier’s security interest over the Customer on the PPSA, 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).

 

15.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.

 

15.3 The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.

 

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

 

16.1 The Customer must inspect the Goods on Delivery and must within twenty-four (24) hours of Delivery notify the Supplier 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 the Supplier to inspect the Goods.

 

16.2 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).

 

16.3 The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

 

16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.

 

16.5 If the Customer is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.

 

16.6 If the Supplier is required to replace the Goods under this clause or the CCA, but is unable to do so, the Supplier may refund any money the Customer has paid for the Goods.

 

16.7 If the Customer is not a consumer within the meaning of the CCA, the Supplier’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 the Supplier at the Supplier’s sole discretion;

(b) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Goods;

(c) otherwise negated absolutely.

 

16.8 Subject to this clause 16, returns will only be accepted provided that:

(a) the Customer has complied with the provisions of clause 1; and

(b) the Supplier 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.

 

16.9 Notwithstanding clauses 1 to 16.8 but subject to the CCA, the Supplier 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 the Supplier;

(e) fair wear and tear, any accident, or act of God.

 

16.10 Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return, then the Supplier will only accept a return on the conditions imposed by that law.

 

17. Intellectual Property

 

17.1 Where the Supplier has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Supplier. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.

 

17.2 The Customer warrants that all designs, specifications, or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.

 

17.3 The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Supplier has created for the Customer.

 

18. Default and Consequences of Default

 

18.1 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 the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

 

18.2 If the Customer owes the Supplier any money, the Customer shall indemnify the Supplier from and against all costs and disbursements:

(a) incurred; and/or

(b) which would be incurred and/or

(c) for which by the Customer would be liable;

in regard to legal costs on a solicitor and own client basis, internal administration fees, the Supplier’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

 

18.3 Further to any other rights or remedies the Supplier may have under this Contract, if a Customer has made payment to the Supplier, 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 the Supplier under this clause 18 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.

 

18.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Supplier becomes overdue, or in the Supplier’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 the Supplier;

(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.

 

19. Cancellation

 

19.1 Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Goods to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.

 

19.2 The Supplier 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 Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation

 

19.3 If the Customer cancels Delivery of Goods, the Customer shall be liable for all losses incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits, return and unload fee).

 

19.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.

 

20. Privacy Policy

 

20.1 All emails, documents, images, or other recorded information held or used by the Supplier is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. The Supplier acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Supplier that may result in serious harm to the Customer, the Supplier 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.

 

20.2 Notwithstanding clause 1, privacy limitations will extend to the Supplier in respect of Cookies where the Customer utilises the Supplier’s website to make enquiries. The Supplier 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 the Supplier when the Supplier sends an email to the Customer, so the Supplier may collect and review that information (“collectively Personal Information”)

If the Customer consents to the Supplier’s use of Cookies on the Supplier’s website and later wishes to withdraw that consent, the Customer may manage and control the Supplier’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

 

20.3 The Customer agrees that the Supplier 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.

 

20.4 The Customer consents to the Supplier being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.

 

20.5 The Customer agrees that personal credit information provided may be used and retained by the Supplier 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.

 

20.6 The Supplier 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.

 

20.7 The information given to the CRB may include:

(a) Personal Information as outlined in 3 above;

(b) name of the credit provider and that the Supplier 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 (provided the Supplier is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of the Supplier, 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).

 

20.8 The Customer shall have the right to request (by e-mail) from the Supplier:

(a) a copy of the Personal Information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect Personal Information; and

(b) that the Supplier does not disclose any Personal Information about the Customer for the purpose of direct marketing.

 

20.9 The Supplier will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

 

20.10 The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at oaic.gov.au.

 

21. Service of Notices

 

21.1 Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Contract;

(c) by sending it by registered post to the address of the other party as stated in this Contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

 

21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

22. Trusts

 

22.1 If the 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 the Supplier may have notice of the Trust, the Customer covenants with the Supplier 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 the Supplier (the Supplier 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.

 

23. Building and Construction Industry Security of Payment Act 2002

 

23.1 At the Supplier’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 Payment Act 2002 may apply.

 

23.2 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

 

24. General

 

24.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.

 

24.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

 

24.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts in Melbourne, Victoria. These terms prevail over all terms and conditions of the Customer (even if they form part of the Customer’s purchase order).

 

24.4 Subject to clause 16, the Supplier 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 the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

 

24.5 The Supplier may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.

 

24.6 The Customer cannot licence or assign without the written approval of the Supplier.

 

24.7 The Supplier 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 the Supplier’s sub-contractors without the authority of the Supplier.

 

24.8 The Customer agrees that the Supplier 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 the Supplier to provide Goods to the Customer.

 

24.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to the Supplier.

 

24.10 Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

 

24.11 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.