RiskWise Compliance PTY. LTD. A.B.N. 44 685 526 998
1. Definitions
1.1. Risk Wise Compliance Pty Ltd knows as “Risk Wise Compliance”, and assigns or any person acting on behalf of and with the authority of Risk Wise Compliance Pty Ltd.
1.2. “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting Risk Wise Compliance to provide the Tasks 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 part of a Trust, shall be bound in their capacity as a trustee; and
c) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3. “Task” means all Tasks (including consultation, routine maintenance and/or installation services) or Materials supplied by Risk Wise Compliance to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Tasks’ or ‘Materials’ shall be interchangeable for the other).
1.4. “Price” means the Price payable (plus any GST where applicable) for the Tasks as agreed between Risk Wise Compliance and the Customer in accordance with clause 6 below.
1.5. “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.
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 any Tasks or services.
2.2. These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and Risk Wise Compliance.
2.3. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with The Electronic Transactions Act 1999 (Cth) or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.4. The Customer acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, Risk Wise Compliance reserves the right to vary the Price with suitable comparable Materials (or components of the Materials) in accordance with clause 6.2. Risk Wise Compliance also reserves the right to halt all Tasks until such time as Risk Wise Compliance and the Customer agree to such changes. Risk Wise Compliance shall not be liable to the Customer for any loss or damage the Customer suffers due to Risk Wise Compliance exercising its rights under this clause.
2.5. Any advice, recommendation, information, assistance or service provided by Risk Wise Compliance in relation to Materials or Tasks supplied is given in good faith, is based on Risk Wise Compliance own knowledge and experience and shall be accepted without liability on the part of Risk Wise Compliance and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Materials and Tasks.
2.6. If Risk Wise Compliance has been requested by the Customer to diagnose a fault that requires investigation, and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
2.7. Risk Wise Compliance has the right to postpone or refuse to provide Tasks where:
a) unsafe or unsanitary conditions exist; or
b) the access to the equipment is not accessible including but not limited to, confined spaces, to provide dry access to service equipment and assets.
3. Errors and Omissions
3.1. The Customer acknowledges and accepts that Risk Wise Compliance 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 Risk Wise Compliance 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 Risk Wise Compliance in respect of the Tasks.
3.2. In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Risk Wise Compliance; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Authorised Representatives
4.1. The Customer acknowledges that Risk Wise Compliance shall (for the duration of the Tasks) liaise directly with one (1) authorised representative, that person shall have the full authority of the Customer to order any Tasks, and/or to request any variation thereto on the Customer’s behalf.
4.2. The Customer accepts that they will be solely liable to Risk Wise Compliance for all additional costs incurred by Risk Wise Compliance in providing any Tasks, or variation/s requested thereto by the Customer’s duly authorised representative.
5. Change in Control
5.1. The Customer shall give Risk Wise Compliance 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).
5.2. The Customer shall be liable for any loss incurred by Risk Wise Compliance as a result of the Customer’s failure to comply with this clause.
6. Price and Payment
6.1. At Risk Wise Compliance sole discretion the Price shall be either:
a) as indicated on invoices provided by Risk Wise Compliance to the Customer in respect of Tasks performed or Materials supplied; or
b) Risk Wise Compliance quoted Price (subject to clause 6.2) which shall be binding upon Risk Wise Compliance provided that the Customer shall accept Risk Wise Compliance quotation in writing within thirty (30) days.
6.2. Risk Wise Compliance reserves the right to change the Price:
a) if a variation to the Materials which are to be supplied is requested; or
b) if a variation to the Tasks originally scheduled (including any applicable plans or specifications) is requested; or
if during the course of the Tasks, the Materials are not or cease to be available from Risk Wise Compliance third party suppliers, then Risk Wise Compliance reserves the right to provide alternative Materials (or components of the Materials); or
where additional Tasks are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitation to accessing the site, obscured site/building defects which require remedial Task, health hazards and safety considerations (such as the discovery of asbestos), prerequisite Task by any third party not being completed, changes to the scope of the Tasks, which are only discovered on commencement of the Tasks; or
c) in the event of increases to Risk Wise Compliance in the cost of labour, taxies, levies or materials which are beyond Risk Wise Compliance control.
6.3. Variations will be charged for on the basis of Risk Wise Compliance quotation, and will be detailed in writing, and shown as variations on Risk Wise Compliance invoice. The Customer shall be required to respond to any variation submitted by Risk Wise Compliance within ten (10) working days. Failure to do so will entitle Risk Wise Compliance to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.4. At Risk Wise Compliance sole discretion a non-refundable deposit may be required.
6.5. Time for payment for the Tasks being of the essence, the Price will be payable by the Customer on the date/s determined by Risk Wise Compliance, which may be:
a) on completion of the Tasks; or
b) by way of progress payments in accordance with Risk Wise Compliance specified progress payment schedule.or
c) the date specified on any invoice or other form as being the date for payment; or
d) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by Risk Wise Compliance.
6.6. Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a 1.5% surcharge may apply per transaction), or by any other method as agreed to between the Customer and Risk Wise Compliance.
6.7. Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Risk Wise Compliance an amount equal to any GST Risk Wise Compliance must pay for any supply by Risk Wise Compliance under this or any other contract for the sale of the Materials. 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.
7. Provision of the Tasks
7.1. Subject to clause 7.2 it is Risk Wise Compliance responsibility to ensure that the Tasks start as soon as it is reasonably possible.
7.2. The Tasks’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Risk Wise Compliance claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Risk Wise Compliance control, including but not limited to any failure by the Customer to:
a) make a selection; or
b) have the site ready for the Tasks; or
c) notify Risk Wise Compliance that the site is ready.
7.3. At Risk Wise Compliance sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
7.4. Risk Wise Compliance may deliver the Tasks by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.5. Any time specified by Risk Wise Compliance for delivery of the Tasks is an estimate only and Risk Wise Compliance will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Tasks to be supplied at the time and place as was arranged between both parties. In the event that Risk Wise Compliance is unable to supply the Tasks as agreed solely due to any action or inaction of the Customer, then Risk Wise Compliance shall be entitled to charge a reasonable fee for re-supplying the Tasks at a later time and date, and/or for storage of the Materials.
8. Risk
8.1. If Risk Wise Compliance retains ownership of the Materials under clause 14 then:
a) where Risk Wise Compliance is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by Risk Wise Compliance or Risk Wise Compliance nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
b) where Risk Wise Compliance is to both supply and install Materials then Risk Wise Compliance shall maintain a contract Tasks insurance policy until the Tasks are completed. Upon completion of the Tasks all risk for the Tasks shall immediately pass to the Customer.
8.2. Notwithstanding the provisions of clause 8.1 if the Customer specifically requests Risk Wise Compliance to leave Materials outside Risk Wise Compliance premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.
8.3. The Customer warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roof and/or crawl spaces), Risk Wise Compliance or Risk Wise Compliance employees reasonably forms the opinion that the Customer’s premises is not safe for the installation of Materials to proceed then Risk Wise Compliance shall be entitled to delay installation of the Materials (in accordance with clause 7.2) until Risk Wise Compliance is satisfied that it is safe for the installation to proceed.
8.4. The Customer warrants that no other tradesmen interfere with any Tasks and/or Materials supplied under this contract. Risk Wise Compliance shall not be liable for any costs, damages or loss however arising from the Customer’s failure to comply with this clause.8.5Risk Wise Compliance shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, Risk Wise Compliance accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9. Electrical Risk
9.1. All Tasks will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling Tasks will comply with the Australian and New Zealand Wiring standards.
9.2. Where the Customer has supplied materials for Risk Wise Compliance to complete the Tasks, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Risk Wise Compliance shall not be responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), however arising from the use of materials supplied by the Customer.
9.3. The Customer acknowledges that Risk Wise Compliance is only responsible for Materials that are replaced/repaired by Risk Wise Compliance, and in the event that other parts/goods, subsequently fail, the Customer agrees to indemnify Risk Wise Compliance against any loss or damage to the Tasks, or caused by the goods, or any part thereof howsoever arising.
a) Property Securities Register established by the PPSA or releasing any Materials charged thereby;
b) not register a financing change statement in respect of a security interest without the prior written consent of Risk Wise Compliance;
c) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Risk Wise Compliance;
e) immediately advise Risk Wise Compliance of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
10. Customer’s Responsibilities
10.1. The Customer shall ensure that Risk Wise Compliance has clear and free access to the Tasksite at all times to enable them to undertake the Tasks. Risk Wise Compliance shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concrete or paved or grassed areas) unless due to the negligence of Risk Wise Compliance.
10.2. The Customer agrees to be present at the Tasksite when and as reasonably requested by Risk Wise Compliance and its employees and/or agents.
10.3. The Customer acknowledges that in the event asbestos or any other toxic substances are discovered at the Tasksite that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify Risk Wise Compliance against any costs incurred by Risk Wise Compliance as a consequence of such discovery. Under no circumstances will Risk Wise Compliance handle removal of asbestos products.
10.4. The Customer acknowledges that it is their responsibility to ensure that all Materials, plant or equipment which Risk Wise Compliance is required to install (or to connect any of its Materials to) are of the correct type, size, rating, standard, quality, colour and finish, conform with all relevant Australian standards and local statutory requirements, and are as specified in the specifications, drawings and plans upon which Risk Wise Compliance based the quotation on and therefore, the Customer agrees to indemnify Risk Wise Compliance against any costs incurred by Risk Wise Compliance in rectifying such errors if required.
10.5. Risk Wise Compliance is not responsible for the removal of rubbish from or clean-up of the building/construction site/s.This is the responsibility of the Customer or the Customer’s agent.
11. Underground Locations or Hidden Services
11.1. Prior to Risk Wise Compliance commencing any Task the Customer must advise Risk Wise Compliance of the precise location of all underground or hidden services on the site and clearly mark the same (including but not limited to any services in wall cavities). The mains/services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
11.2. Whilst Risk Wise Compliance will take all care to avoid damage to any services the Customer agrees to indemnify Risk Wise Compliance in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1.
12. Compliance with Laws
12.1. The Customer and Risk Wise Compliance shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Tasks, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
12.2. The Customer shall obtain (at the expense of the Customer) all licenses, engineers reports, and approvals that may be required for the Tasks.
13. Title
13.1. Risk Wise Compliance and the Customer agree that ownership of the Materials shall not pass until:
a) the Customer has paid Risk Wise Compliance all amounts owing to Risk Wise Compliance; and
b) the Customer has met all of its other obligations to Risk Wise Compliance.
13.2. Receipt by Risk Wise Compliance 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 Materials passes to the Customer in accordance with clause 12.1:
a) the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Risk Wise Compliance on request.
b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for Risk Wise Compliance and must pay to Risk Wise Compliance the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
c) the production of these terms and conditions by Risk Wise Compliance shall be sufficient evidence of Risk Wise Compliance rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Risk Wise Compliance to make further enquiries
d) the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for Risk Wise Compliance and must pay or deliver the proceeds to Risk Wise Compliance on demand.
e) the Customer should not convert or process the Materials 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 Risk Wise Compliance and must sell, dispose of or return the resulting product to Risk Wise Compliance as it so directs.
f) unless the Materials have become fixtures the Customer irrevocably authorises Risk Wise Compliance to enter any premises where Risk Wise Compliance believes the Materials are kept and recover possession of the Materials.
g) Risk Wise Compliance may recover possession of any Materials in transit whether or not delivery has occurred.
h) the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Risk Wise Compliance.
i) Risk Wise Compliance may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials 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 PPSA.
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 Materials and/or collateral (account) –being a monetary obligation of the Customer to Risk Wise Compliance for Tasks –that have previously been supplied and that will be supplied in the future by Risk Wise Compliance to the Customer.
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 Risk Wise Compliance may reasonably require to:
i. register any other document required to be registered by the PPSA; or
ii. correct a defect in a statement referred to in clause 14.3(a)(i) or 14.3(a)(ii);
b) indemnify, and upon demand reimburse, Risk Wise Compliance for all expenses incurred in registering a financing statement or financing change statement on the Personal
14.4. Risk Wise Compliance 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 hereby waives its 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 its 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 Risk Wise Compliance, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
14.8. The Customer shall unconditionally ratify any actions taken by Risk Wise Compliance under clauses 14.3 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 Risk Wise Compliance agreeing to supply the Materials, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2. 16.2The Customer indemnifies Risk Wise Compliance from and against all Risk Wise Compliance costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Risk Wise Compliance rights under this clause.16.3The Customer irrevocably appoints Risk Wise Compliance and each director of Risk Wise Compliance as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 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. 17.1The Customer must inspect all Materials on delivery (or the Tasks on completion) and must within seven (7) days of delivery notify Risk Wise Compliance 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 Materials/Tasks as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Risk Wise Compliance to inspect the Materials or to review the Tasks provided.
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. Risk Wise Compliance 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, Risk Wise Compliance makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Tasks. Risk Wise Compliance 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, Risk Wise Compliance liability is limited to the extent permitted by section 64A of Schedule 2.17.
16.6. If Risk Wise Compliance is required to replace any Materials under this clause or the CCA, but is unable to do so, Risk Wise Compliance may refund any money the Customer has paid for the Materials.
16.7. If Risk Wise Compliance is required to rectify, re-supply, or pay the cost of re-supplying the Tasks under this clause or the CCA, but is unable to do so, then Risk Wise Compliance may refund any money the Customer has paid for the Tasks but only to the extent that such refund shall take into account the value of Tasks and Materials which have been provided to the Customer which were not defective.
16.8. If the Customer is not a consumer within the meaning of the CCA, Risk Wise Compliance liability for any defect or damage in the Materials is:
a) limited to the value of any express warranty or warranty card provided to the Customer by Risk Wise Compliance at Risk Wise Compliance sole discretion;
b) limited to any warranty to which Risk Wise Compliance is entitled, if Risk Wise Compliance did not manufacture the Materials;
c) otherwise negated absolutely.
16.9. Subject to this clause 16, returns will only be accepted provided that:
a) the Customer has complied with the provisions of clause 16.1; and
b) Risk Wise Compliance has agreed that the Materials are defective; and
c) the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
16.10. Notwithstanding clauses 16.1 to 16.9 but subject to the CCA, Risk Wise Compliance 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 Materials;
b) the Customer using the Materials for any purpose other than that for which they were designed;
c) the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
d) interference with the Tasks by the Customer or any third party without Risk Wise Compliance prior approval.
e) the Customer failing to follow any instructions or guidelines provided by Risk Wise Compliance.
f) fair wear and tear, any accident, or act of God.
16.11. Notwithstanding anything contained in this clause if Risk Wise Compliance is required by a law to accept a return then Risk Wise Compliance will only accept a return on the conditions imposed by that law.
17. Pipe Freezing
17.1. Risk Wise Compliance shall not be held liable for, any damage arising out of or in any way involving the activity of freezing water to conduct any pipe work where a stop valve is not available.
17.2. Risk Wise Compliance shall not personally conduct the activity of freezing water in any pipe work above 25mm in diameter.
18. Fire Hydrant System Testing
18.1. Risk Wise Compliance shall not be held liable for, any damage arising out of or in any way involving the activity of fire hydrant testing where the system may fail due to previous poor maintenance or conditions outside of Risk Wise Compliance control.
19. Intellectual Property
19.1. Where Risk Wise Compliance has designed, drawn, written plans or a schedule of Tasks, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Risk Wise Compliance, and shall only be used by the Customer at Risk Wise Compliance discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Risk Wise Compliance.
19.2. The Customer warrants that all designs, specifications or instructions given to Risk Wise Compliance will not cause Risk Wise Compliance to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Risk Wise Compliance against any action taken by a third party against Risk Wise Compliance in respect of any such infringement.
19.3. The Customer agrees that Risk Wise Compliance may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Risk Wise Compliance has created for the Customer.
20. Default and Consequences of Default
20.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Risk Wise Compliance sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2. If the Customer owes Risk Wise Compliance any money the Customer shall indemnify Risk Wise Compliance from and against all costs and disbursements incurred by Risk Wise Compliance in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Risk Wise Compliance contract default fee, and bank dishonour fees).
20.3. Further to any other rights or remedies Risk Wise Compliance may have under this contract, if a Customer has made payment to Risk Wise Compliance, 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 Risk Wise Compliance 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.
20.4. Without prejudice to Risk Wise Compliance other remedies at law Risk Wise Compliance shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Risk Wise Compliance shall, whether or not due for payment, become immediately payable if:
a) any money payable to Risk Wise Compliance becomes overdue, or in Risk Wise Compliance 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 Risk Wise Compliance;
c) the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
21. Dispute Resolution
21.1. If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
21.2. Cancellation Without prejudice to any other remedies Risk Wise Compliance may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Risk Wise Compliance may suspend or terminate the supply of Tasks to the Customer. Risk Wise Compliance will not be liable to the Customer for any loss or damage the Customer suffers because Risk Wise Compliance has exercised its rights under this clause.
21.3. Risk Wise Compliance may cancel any contract to which these terms and conditions apply or cancel delivery of Tasks at any time before the Tasks are commenced by giving written notice to the Customer. On giving such notice Risk Wise Compliance shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to Risk Wise Compliance for Tasks already performed. Risk Wise Compliance shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.4. In the event that the Customer cancels the delivery of Tasks the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Risk Wise Compliance as a direct result of the cancellation (including, but not limited to, any loss of profits).
21.5. Cancellation of orders for products made to the Customer’s specifications, or for non-stock list items, will definitely not be accepted once production has commenced, or an order has been placed.
22. Privacy Act 1988
22.1. The Customer agrees for Risk Wise Compliance to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by Risk Wise Compliance.
22.2. The Customer agrees that Risk Wise Compliance may exchange information about the Customer with those credit providers and with related body corporates for the
a) 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
b) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
22.3. The Customer consents to Risk Wise Compliance being given a consumer credit report to collect overdue payment on commercial credit.
22.4. The Customer agrees that personal credit information provided may be used and retained by Risk Wise Compliance for the following purposes (and for other agreed purposes or required by):
a) the provision of Tasks; and/or
22.5. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Tasks; and/or
22.6. Risk Wise Compliance 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.
b) The information given to the CRB may include:
c) personal information as outlined in 20.1 above;
d) name of the credit provider and that Risk Wise Compliance is a current credit provider to the Customer; whether the credit provider is a licensee; type of consumer credit;
e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and Risk Wise Compliance has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
g) information that, in the opinion of Risk Wise Compliance, 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).
22.7. The Customer shall have the right to request (by e-mail) from Risk Wise Compliance:
a) a copy of the information about the Customer retained by Risk Wise Compliance and the right to request that Risk Wise Compliance correct any incorrect information; and
b) that Risk Wise Compliance does not disclose any personal information about the Customer for the purpose of direct marketing.
22.8. The Customer can make a privacy complaint by contacting Risk Wise Compliance via e-mail. Risk Wise Compliance will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint.
23. Service of Notices
23.1. 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.
23.2. 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.
24. Trusts
24.1. 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 Risk Wise Compliance may have notice of the Trust, the Customer covenants with Risk Wise Compliance 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 Risk Wise Compliance (Risk Wise Compliance 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.
25. General
25.1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
25.2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which Risk Wise Compliance has its principal place of business and are subject to the jurisdiction of the Courts in Queensland.
25.3. Subject to clause 14 Risk Wise Compliance 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 Risk Wise Compliance of these terms and conditions (alternatively Risk Wise Compliance liability shall be limited to damages which under no circumstances shall exceed the Price of the Tasks).
25.4. Risk Wise Compliance may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
25.5. The Customer cannot licence or assign without the written approval of Risk Wise Compliance.
25.6. Risk Wise Compliance may elect to subcontract out any part of the Tasks 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 Risk Wise Compliance sub-contractors without the authority of Risk Wise Compliance.
25.7. The Customer agrees that Risk Wise Compliance may amend these terms and conditions by notifying 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 Risk Wise Compliance to provide Tasks to the Customer.
25.8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
25.9. Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
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