1. Definitions and interpretation

Agreement has the meaning given to the term in clause 3(c) of these Terms.

Application means the Application for Credit (if any).

ACL means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended from time to time.

Business Day means a day that is not a Saturday, a Sunday, or a day that is wholly or partly a public holiday in Victoria.

Change in Control means in relation to the Customer, a change by which a person or persons who control the Customer (as at the date of the Agreement) ceases or cease to have control of the Customer.

Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.

Consumer and Consumer Contract have the meaning given to those terms in the ACL.

Credit Account Application means the SCPAD’s Credit Account Application form and accompanying Guarantee and Indemnity (if applicable) which must be completed in order for a Customer to be considered for provision of credit.

Customer means the party who has made an Application (if applicable) and/or is acquiring the Goods and / or Services (as applicable) from SCPAD.

Fee means the amount payable to SCPAD for providing the Services and Goods.

Force Majeure Event means any event outside the SCPAD’s reasonable control including acts of God, declared or undeclared war, act of terrorism, fire, flood, storm, earthquake, hurricane, cyclone, riot, power failure, industrial action, defaults of manufacturers or suppliers, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay, labour disputes, theft, any criminal act, epidemic or pandemic (including, without limitation, COVID-19), government-imposed prohibitions or restrictions, or other similar events beyond a party’s control that may prevent or delay the Supplier from performing its obligations under the Agreement.

Goods means any goods supplied by the Supplier under these Terms.

GST means any goods and services tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Incapacity Event means, if the Customer is an individual, the individual dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Customer’s own affairs for any reason.

Insolvency Event means, for the Customer, as applicable, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act 2001 (Cth) (“Act”)) or analogous person appointed to the Customer or any of the Customer’s property, being taken under section 459F(1) of the Act to have failed to comply with a statutory demand, being unable to pay the Customer’s debts, taking any step that could result in the Company becoming an insolvent under administration (as defined in section 9 of the Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors, or any analogous event.

Loss means any expense, cost, liability or damage of any kind and includes, without limitation, Consequential Loss and a fine or penalty imposed by a statutory or other authority.

Non-Excludable Provision has the meaning given to that term in clause 10(c).

Order means a Customer’s request for the provision of particular Goods and Services by the Supplier.

Services means any services supplied by the Supplier under these Terms.

SCPAD means Surfcoast Phone and Data Pty Ltd (ACN 626 850 075).

Supplier Terms means any terms and conditions of quotation and supply (apart from these Terms), however described, notified by the SCPAD to the

Customer (whether on an invoice, quote, through the SCPAD’s website, docket or otherwise), including any discount terms, in the SCPAD’s standard form entered into in writing between the SCPAD and Customer.

Terms means these terms and conditions.

Singular words include the plural and vice versa. A mention of anything after include, includes or including, does not limit what else might be included.

2. Acceptance of these Terms

The Customer will be deemed to have accepted these Terms when it either signs the Agreement it places an Order with the SCPAD, whichever occurs first.

3. Structure of this document

(a) The Terms are legally binding between SCPAD and the Customer and should be read together with the Supplier Terms. These Terms will be imported into any Supplier Terms by reference.

(b) To the extent of any inconsistency, the Terms prevail over the Supplier Terms, unless SCPAD and the Customer expressly agree that the Supplier Terms are to prevail over these Terms.

(c) The Terms, the Supplier Terms, the Application, and each Order that is accepted by SCPAD, set out the terms of the supply agreement (“Agreement”) between the Customer and SCPAD. The acceptance of an Order shall not form a separate agreement between the Customer and SCPAD, but shall constitute part of this Agreement. Any terms contained in any document supplied by the Customer will not form part of the Agreement.

4. Price of Services

(a) SCPAD will, on request, give the Customer a quote which will specify an estimate of SCPAD’s Fees for the provision of the Services and Goods and may specify an estimation of the period for such provision.

(b) All prices quoted are valid for the day on which they were quoted or until earlier acceptance by the Customer, after which time they may be altered by SCPAD.

(c) All prices are listed in Australian Dollars (AUD) unless otherwise specified.

(d) These Fees may be reviewed from time to time and may change. For example, if the scope of the Services is extended or additional information is provided. SCPAD will notify the Customer of any change as soon as practicable after the change occurs.

(e) SCPAD may require the Customer to pay a deposit prior to commencement of provision of any Goods or Services Services and part payment prior to completion.

(f) The Customer is required to pay the Fee without any deductions, discount or debt within seven (7) days from receiving an invoice(s) or any other time period stated on the invoice. For the avoidance of doubt and to the extent of any inconsistency, the due date for payment on the invoice will prevail. Any alternative agreements must be agreed by the Customer and SCPAD in writing.

(g) The Customer agrees that it must pay the price charged by SCPAD for the provision of Goods and Services, without any deduction, discount or setoff within fourteen (14) days from receiving an invoice(s) and in the manner stated on the invoice. Any alternative arrangements must be agreed in writing.

(h) The Customer will be required to pay any additional costs or Fees incurred by SCPAD as a result of:

(i) a delay by the Customer in performing an obligation under this Agreement;

(ii) a failure to provide accurate information; or

(iii) additional work or Services or Goods supplied required to be performed at the request of the Customer or recommendation of SCPAD and accepted by the Customer.

(i) If the Customer does not notify SCPAD of any alleged discrepancy in an invoice, within twenty (20) Business Days of the issue of an invoice, the invoice is deemed to be a true and accurate record of the Customer’s account.

5. Credit (if applicable)

(a) The Customer has no entitlement to credit unless in SCPAD’s sole discretion, SCPAD accepts to extend credit to the Customer having first received and reviewed a valid Application from the Customer.

(b) If in a particular case, SCPAD gives the Customer credit, SCPAD still reserves the right at any time and for any reason in SCPAD’s sole discretion to refuse to supply any further Goods or Services to the Customer and to refuse to supply any Goods or Services to the Customer on credit terms. If SCPAD declines to give the Customer further credit then that decision does not affect the credit terms which apply to any amounts the Customer then owes to SCPAD.

(c) If the Customer consistently fails to comply with any of these Terms, or fails to comply with an obligation to pay money to SCPAD when due, suffers an Insolvency Event or an Incapacity Event, or makes any misrepresentation to SCPAD, the balance of the Customer’s account to SCPAD will become due and payable immediately.

(d) The Customer must advise SCPAD in writing of the occurrence of any Insolvency Event, any change in its name or any Change in Control of the Customer as soon as practicable and not later than within two (2) Business Days of such event, change or step occurring. The Customer acknowledges that, despite any such event, change, or step the Customer remains liable to pay the price for all Goods and Services supplied.

(e) SCPAD may reject an Order if the balance of the credit is exceeded at any time, or would be exceeded by the acceptance of the Order.

6. Overdue accounts

(a) If the Customer does not make any payment of any invoice in full by the due date, SCPAD may charge:

(i) interest of two percent (2%) per annum more than the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic) on the amount outstanding from the due date until the date of payment;

(ii) any costs and expenses (including legal costs, commissions paid by SCPAD to any commercial or mercantile agent and dishonour fees) incurred by SCPAD in connection with the recovery of overdue amounts.

(b) SCPAD may recover the price of the Goods and Services together with all interest forthwith under clause 6(a)(i) and any applicable amounts in clause
6(a)(ii) from the Customer as a liquidated debt in a court or tribunal of competent jurisdiction irrespective of any claim that the Customer may have against SCPAD for any thing or matter related to the Goods or Services supplied under the Agreement. (c) SCPAD may in its discretion grant an extension for payment, however any extension, delay or other indulgence shall not be construed as waiving SCPAD’s rights under the Agreement or at law.

7. Supply

(a) The Customer may place an Order which SCPAD may choose to accept or reject (acting in SCPAD’s sole discretion) in whole or in part.

(b) SCPAD is not liable for any delay or failure to supply an Order for any reason due to a Force Majeure Event.

(c) Upon supply of the Goods in accordance with the Order, the Customer must examine them. If the Goods are not of merchantable quality, do not conform to any agreed specification, or have defects or if there is any alleged discrepancy in a supplied Order or alternatively an alleged failure or partial failure of supply, the Customer must notify SCPAD within 24 hours of the supply, failing which the Goods will be deemed to have been supplied in good order and condition and will be deemed to have accepted the Goods.

(d) Risk in relation to the Goods passes at the time they are supplied.

8. Retention of title

SCPAD retains legal and equitable title in any Goods supplied to the Customer until payment in full for or in connection with the supply of the relevant Goods has been received by SCPAD.

9. Security interest

(a) For the purposes of this clause “PPSA” means the Personal Property Securities Act 2009 (Cth) and references to sections in this clause 9 are to sections of the PPSA.

(b) The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.

(c) The retention of title arrangement described in clause 9 constitutes the grant of a purchase money security interest by the Customer in favour of SCPAD in respect of all present and after acquired Goods supplied to the Customer by SCPAD.

(d) The Customer must immediately, if requested by SCPAD, sign any documents, provide all necessary information and do anything else required by SCPAD to ensure that SCPAD’s purchase money security interest is a perfected security interest.

(e) The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until SCPAD has perfected its purchase money security interest.

(f) The parties agree to contract out of the application of sections 95, 118, 121(4), 130, 132(4), 135, 142 or 143 of the PPSA in relation to the Goods.

(g) The Customer hereby waives any rights the Customer may otherwise have to:

(i) receive any notices the Customer would otherwise be entitled to receive under sections 95, 118, 121, 130, 132 or 135;

(ii) apply to a Court for an order concerning the removal of an accession under section 97;

(iii) object to a proposal of SCPAD to purchase or retain any collateral under sections 130 and 135;

(iv) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest SCPAD may have in Goods supplied to the Customer from time to time.

10. Limitation of Liability and Release

(a) Subject to clause 10(c) and except as expressly provided to the contrary in these Terms or the Supplier Terms, all guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to these Terms or the Supplier Terms or their subject matter are excluded to the maximum extent permitted by law.

(b) Nothing in these Terms or the Supplier Terms excludes, restricts or modifies any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the consumer guarantees under the ACL.

(c) Where SCPAD is not able to exclude a guarantee, term, condition, warranty, undertaking, inducement or representation imposed by legislation in relation to these Terms or the Supplier Terms (“Non-Excludable Provision”), and SCPAD is able to limit the Customer’s remedy for a breach of the Non-Excludable Provision, then SCPAD’s liability for breach of the Non-Excludable Provision is limited to (at SCPAD’s election):

(i) in the case of Goods: the repair of the Goods, the replacement of the Goods or the supply of substitute goods (or cost of doing so);

(ii) in the case of Services: the re-performance of the Services or the payment of the cost of having the Services re-performed.

(d) Subject to SCPAD’s obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, SCPAD’s maximum aggregate liability for all claims under or relating to these Terms or the Supplier Terms or their subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, is limited to an amount equal to the GST exclusive aggregate price paid by the Customer to SCPAD for the specific Goods and Services that gave rise to the claims in question.

(e) Subject to clauses 10(c) and 10(d), SCPAD will not be liable to the Customer for any Consequential Loss.

11. Indemnity

To the extent permitted by law, SCPAD, its employees, agents, contractors and affiliates (together the “Indemnified Parties”) will not be liable for and the Customer will indemnify and hold harmless each of the Indemnified Parties against any claims, actions, expenses (including all reasonable legal expenses), and Losses of a third party resulting from or arising out of:

(a) negligence of the Customer or its employees, contractors, agents or affiliates; or

(b) any breach of a statute, common law or by-law by the Customer or its employees, contractors, agents or affiliates; or

(c) any breach of these Terms and/or Supplier Terms by the Customer or its employees, contractors, agents or affiliates; or

(d) the provision of services or the use of information provided by the Customer or its employees, contractors, agents or affiliates, except to the extent that the claim, action or Loss is caused by the negligence or unlawful act of SCPAD.

12. GST

(a) If SCPAD has any liability to pay GST on the supply of any Goods and Services to the Customer, the Customer must pay to SCPAD an amount equivalent to the GST liability of SCPAD at the same time as the consideration is paid for the Goods and Services (unless the consideration for that supply is expressed specifically to be GST inclusive). The Customer must pay GST without deduction or set off of any other amounts payable to SCPAD.

13. Privacy disclosure and consent

The Customer authorises SCPAD to:

(a) obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in this document and from any other credit provider or credit reporting agency for the purpose of assessing the Application, or in connection with any guarantee given by the Customer;

(b) use, disclose or exchange with other credit providers about the Customer’s credit arrangements in order to assess the Application, monitor credit worthiness and collect overdue accounts; and

(c) disclose the contents of any credit report on the Customer to its solicitors and mercantile agents.
If the Customer does not provide the information requested in this document, SCPAD may be unable to process the Application. SCPAD complies with the privacy principles imposed by law and the privacy policy annexed to the Application in relation to the collection and disclosure of information regarding individuals.

14. Confidentiality

The Customer agrees to:

(a) keep the terms of any grant of credit and any Supplier Terms confidential (“Confidential Information”); and

(b) not disclose the Confidential Information to any person without the prior written consent of SCPAD.

15. Dispute resolution

The Customer must notify SCPAD of any complaint or claim it has against SCPAD and must take reasonable steps to resolve these matters with SCPAD before making a complaint to a regulatory authority, or issuing proceedings in a court or tribunal.

16. Amendment

SCPAD may at any time alter these Terms or the Supplier Terms by notice in writing to the Customer.

17. Assignment

Unless SCPAD expressly consents, the Customer must not assign any obligation, entitlement, charge or rights under these Terms or Supplier Terms.

18. Good faith

The parties enter into the Agreement in good faith.

19. Severability

If any provision of these Terms or Supplier Terms offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then:

(a) where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and

(b) in any other case the offending provision must be severed from these Terms or Supplier Terms (whichever is applicable), in which event the remaining provisions of the Terms or Supplier Terms (whichever is applicable) operate as if the severed provision had not been included.

20. Governing law

These Terms and any Supplier Terms are governed by and must be construed in accordance with the Laws of the State of Victoria. The parties submit to the non-exclusive jurisdiction of the Courts of the State of Victoria and any other court or tribunal exercising the relevant jurisdiction.