Terms and Condition
‘Customer’ means You
‘Delivery address’ means the address to which the Services are to be delivered as advised to OptiBuild by the Customer.
‘GST’ means any Goods and Services Tax within the meaning of the GST Act.
‘GST Act’ means A New Tax System (Goods & Services Tax) Act 1999 (as amended).
‘Price’ means the price (which OptiBuild may amend from time to time) payable for the Services plus any applicable GST, as invoiced by OptiBuild to the Customer.
‘You’ or means the Customer
‘We’ means OptiBuild
• an estimate of quantities of materials specified and ordered or to be ordered by the customer (‘specified materials’) ascertained from a plan provided by the Customer or its nominee (‘nominee’) to OptiBuild;
• the provision of a draft quotation to the Customer and/or the nominee, or
• the provision of access to OptiBuild computer software and website to the Customer or the nominee.
The derivative of a word has a corresponding meaning.
(a) Acceptance of these terms by the Customer will be by the placement of an order, whether verbally or in writing and if in writing, whether is signed or unsigned, or implied by conduct or otherwise, and any person, firm, company (in personal capacity or as trustee or otherwise) placing any order with OptiBuild will be bound by these terms and conditions (‘these terms’).
(b) When the Customer accepts these terms, an enforceable contract is formed between the Customer and OptiBuild, for the provision of the Services as specified to the Customer, at the price specified to the Customer, on these terms without alteration unless agreed in writing.
(c) OptiBuild reserves the right at any time and from time to time to amend, vary or change these terms and conditions and such amendment, variation or addition will have effect from the date of notification by OptiBuild to the Customer. Notification can be publication on our website, in which case you acknowledge that you have been notified.
(d) Acceptance of an order by OptiBuild will be conditional on OptiBuild being satisfied as to the Customer’s creditworthiness. If OptiBuild considers that the Customer’s creditworthiness is unsatisfactory then OptiBuild will be entitled to cancel any order and will not be liable to the Customer for any claims, losses or expenses whatsoever resulting from cancellation.
(e) OptiBuild reserves the right in its absolute discretion to grant or decline to grant credit to any Customer and to suspend or cancel any credit entitlement with effect from the date of notification to the Customer.
(f) OptiBuild reserves the right to request that Customers requesting credit complete OptiBuild’s credit application form (Application) and to request references and a current ASIC business name and/or company extract of the Customer.
(a) Services provided by OptiBuild that involve information on which the Customer acts, such as pricing, supply or installation of materials, have an inherent risk of inaccuracy. Consequently, such information ought not be relied on as the sole basis on which the Customer acts, including but limited to pricing, supply or installation of materials. Customer should consider the information in light of their particular circumstances. You are taken to have reviewed and checked to your satisfaction any information provided to you by OptiBuild.
(b) OptiBuild disclaims any and all liability to any third party for any costs, loss or damage and liability arising from, related to, or in any way connected with the Services or the provision of the Services, and Customer will not authorise or represent to anyone that OptiBuild’s information can be relied upon by any third party.
4. Price & Payment
(a) Unless otherwise advised by OptiBuild, the Price of the Services will be the price charged by OptiBuild at the date of acceptance of the Customer’s order for the Services.
(b) The Customer will pay all and any delivery charges advised by OptiBuild and applicable to Customer’s order.
(c) Payment can be made by cash, cheque or direct transfer. For payments by cheque, payment will not have been made until the cheque is honoured and the monies payable under it are received cleared funds are in OptiBuild’s bank account.
(d) Time is of the essence in respect of the payment obligations. If payment is overdue OptiBuild may, at its sole discretion, charge interest of 3.5% per month plus an administration fee of $100 on any overdue amount from the due date for payment until payment in full is received by OptiBuild. OptiBuild may in addition to its other remedies, cancel or suspend the Customer’s entitlement to credit, or withhold supply of any goods until the Customer has paid all sums owing to OptiBuild.
(e) OptiBuild may in its absolute discretion apply any payments it receives from the Customer in and towards the satisfaction of any indebtedness of the Customer.
(f) OptiBuild will not be bound by any conditions that the Customer may make in relation to payments made under this or any other agreement with OptiBuild.
(g) The Customer must pay all costs and expenses incurred by OptiBuild in connection with any order including legal expenses (on a solicitor-client basis) stamp duty and costs incurred in the recovery of monies owing by the Customer to OptiBuild, and all costs in respect of enforcing OptiBuild’s rights against the Customer under any order or judgment.
(h) Prices are subject to change at the absolute discretion of OptiBuild and will be notified by OptiBuild to the Customer.
(i) The Customer authorises OptiBuild to process payments by mean of its chosen payment method through IntegraPay Pty Ltd and agrees to do all things necessary to facilitate that method of payment, including signing up to that payment service.
(j) OptiBuild will make reasonable efforts to keep any of Customer’s information secure and to ensure that any of its employees or agents who have access to such information for the purposes of conducting its business and providing you services, do not make any unauthorised use, modification, reproduction or disclosure of that information.
(a) OptiBuild will arrange for the delivery of the Services to you, and our current means of provision of services in electronic. The Customer will pay the cost of delivery.
(b) OptiBuild will not be liable for any loss or damage of any kind including but not limited to errors or omissions to the Services howsoever arising, and including direct or indirect loss, consequential loss, loss of revenue, pure economic loss, loss of opportunity or the like.
(c) Any period or date for delivery of Services specified is intended as an estimate only and is not a contractual commitment on the part of OptiBuild.
(d) OptiBuild will make all reasonable efforts to arrange for the delivery of Services within any period stated but if, for any reason, including negligence by OptiBuild, its servants, employees, agents, contractors or service providers, delivery of the Services is or will be delayed, OptiBuild will not be responsible for any loss sustained by the Customer or any other person firm or corporation by reason of any such delay, including direct or indirect loss, consequential loss, loss of revenue, pure economic loss, loss of opportunity or the like.
(e) If the cause of any delay was under the control of the Customer (or anyone employed by or acting on behalf of the Customer, including but not limited to a nominee) then OptiBuild will, at its sole discretion, be entitled either to increase the Price of the Services or demand payment of the Services ordered. If payment is not received by OptiBuild, the Customer will upon demand pay to OptiBuild interest and administration fee as set out in Clause 4 above.
(f) The Services may be delivered in instalments in the sole discretion of OptiBuild, and each delivery will be regarded as having been made under a separate contract, independent from the other deliveries and the Services delivered will be paid for accordingly. The failure to make delivery of any instalment will not affect in any way an order as to delivery of other instalments. Notwithstanding, the Customer is always required to pay OptiBuild for Services already delivered and for Services ordered and not yet delivered.
(g) OptiBuild reserves the right to withhold delivery of all Services if the Customer is in default of any of its obligations under these terms.
6. Risk and Insurance; confidentiality and intellectual property
(a) Notwithstanding that title in the Services may not have passed consistent with clause 6, the risk of loss or damage to the Services and/or insurance responsibility for theft, damage or otherwise in respect to the Services will pass to the Customer upon despatch of the Services to the Customer.
(b) Services, materials and information provided by OptiBuild are confidential and proprietary to OptiBuild, and you are licensed to use them for your purposes and for the purposes of these terms. These terms do not pass any interest to you in the proprietary information or intellectual property of OptiBuild, and you agree that you will not disclose any such information or intellectual property or use it for purposes outside of these terms and the provision of the Services.
7. Exclusion of Liability
(a) To the maximum extent permitted by law, except as expressly provided to the contrary in this Agreement, all representations, warranties, representations, terms and conditions in relation to the Services or to these terms (whether express, implied, statutory or otherwise) are hereby excluded.
(b) Without limiting the generality of the preceding clause, OptiBuild will not be under any liability to the Customer in respect of any loss or damage, whether direct or indirect loss, consequential loss, loss of revenue, pure economic loss, loss of opportunity or the like, howsoever caused, which may arise, directly or indirectly, in connection with the Services. The total liability of OptiBuild for loss or damage of every kind arising out of the purchase and/or provision of the Services, whether in tort, contract or any other cause of action, is limited to, at the sole discretion of OptiBuild, the repair or replacement of the Services, not exceeding the purchase price of the Services.
(c) Where any law implies in this Agreement any term, condition or warranty and such law voids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under, such term, condition or warranty, such term, condition or warranty will be deemed to be included in these terms. However, the liability of OptiBuild for any breach of such term, condition or warranty will be limited at the sole and exclusive option of OptiBuild to any one or more of the following:
(i) the provision of the services again; or
(ii) payment of the costs of having the relevant services provided again.
(d) Any claim by the Customer in respect of defective Services must be confirmed by email to: email@example.com within 7 days after the date of delivery of the Services.
(e) The Customer indemnifies OptiBuild and holds it harmless against any and all actions, claims, proceedings, costs, losses, expenses, liabilities, including legal fees, whatsoever and howsoever caused or arising out of, in connection with or resulting from the Services or the provision or use of the Services, including the manufacture, delivery, use, operation and/or erection of the specified materials, whether direct or indirect loss, consequential loss, loss of revenue, pure economic loss, loss of opportunity or the like.
The Customer acknowledges that OptiBuild relies on the plans, specifications and information provided by the Customer or the customer’s nominee and acknowledges that OptiBuild is not liable for, and hereby releases OptiBuild from, all and any claims or damages, whether direct or indirect loss, consequential loss, loss of revenue, pure economic loss, loss of opportunity or the like, in respect of faulty or defective plans specifications and information.
(a) OptiBuild collect and use personal information about the Customer only as necessary for us to perform necessary functions or activities.
(b) OptiBuild collects and uses personal information about the Customer primarily in connection with the sale and/or supply of the Services and for the secondary purposes of billing and account management, in accordance with the Information Privacy Principles contained in the Privacy Act 1988.
(c) OptiBuild may be restricted in or prevented from performing any one or more of its functions in connection with the sale and/or supply of the Services if the Customer does not provide personal information requested.
(d) OptiBuild may disclose personal information about you for the purposes set out in Clause 10(a) to suppliers, agents and/or contractors who may need the information in order to provide us with supplies or services, in order that we may better perform our functions and activities in connection with the sale and/or provision of Services.
(e) You may request access to personal information we hold about you and we will grant you access. If any information we hold about you is inaccurate, you may also contact us to request that the relevant information be corrected.
(f) For the purposes of the ongoing credit management of Customer’s account, it may be necessary to disclose to a Credit Reporting Agency, information about the Customer or your account held with us, including but not limited to the following information:
(i) personal details for the purposes of identification, such as name, addresses, occupation, Driver’s Licence number, date of birth;
(ii) details of the Application submitted to us by you, including details of any credit limit on your account;
(iii) details of any amounts overdue for at least ninety days, after reasonable steps have been taken by us to recover any such overdue amounts;
(iv) where such amounts have previously been reported but no longer remain outstanding, confirmation that payment of such outstanding amounts has been made;
(v) details of any dishonoured cheques, credit card or direct debit payments;
(vi) particulars of any Court judgments or bankruptcy orders made against you;
(vii) confirmation that you have breached these terms;
(viii) the date upon which we cease to sell or supply the Services to you, as a result of a breach of terms.
(g) You authorise OptiBuild to disclose the information set out in sub-clause 10(f) to a Credit Reporting Agency, that we as a credit provider, are permitted to give under the Privacy Act 1988.
(a) These terms are governed by the laws of the State of Victoria and you submit to the non-exclusive jurisdiction of Courts of that State and Courts of appeal from them.
(b) In the event that any of the provisions herein contained will be held to be unenforceable or invalid, all other provisions will continue in full force and effect to the extent that they can be severed from the part which has been held to be unenforceable or invalid.
(c) You may not assign or transfer any of your rights under these terms without OptiBuild’s written consent.
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