These terms and conditions are to be read in conjunction with the Terms and Conditions contained in the Sub-Contracting Agreement. 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.
If there are any inconsistencies between the two documents then the Terms and Conditions contained herein shall
1.1 This Head Contractor and the Sub-Contractor are taken to have exclusively accepted and are immediately
bound, jointly and severally, by these terms and conditions upon signing of a Sub-Contracting Agreement by both
1.2 These terms and conditions may only be amended with Sub-Contractor’s consent in writing and shall prevail to
the extent of any inconsistency with any other document or agreement between the Head Contractor and Sub-Contractor.
2.1 if the Head Contractor owes the Sub-Contractor any money the Head Contractor shall indemnify the SubContractor from and against all costs and disbursements incurred by the Sub-Contractor in recovering the debt
(including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the SubContractor’s contract default fees, and bank dishonour fees).
- Title and Personal Property Securities Act 2009
3.1 Notwithstanding the delivery of the Goods and/or Services or part thereof the Goods and/or Services remain
the sole and absolute property of the Sub-Contractor as full legal and equitable owner until such time as the Head
Contractor shall have paid the Sub-Contractor the full purchase price together with the full price of any other Goods
and/or Services the subject of any other agreement with the Sub-Contractor.
3.2 The Head Contractor acknowledges that it receives possession of and holds Goods and/or Services delivered
by the Sub-Contractor solely as bailee for the Sub-Contractor until such time as the full price thereof is paid to the
Sub-Contractor together with the full price of any other Goods and/or Services then the subject of any other
agreement with the Sub-Contractor and that a fiduciary relationship exists between the Sub-Contractor and the
3.3 Until such time as the Head Contractor becomes the owner of the Goods and/or Services, it will;
(a) store them on the premises separately;
(b) ensure that the Goods and/or Services are kept in good and serviceable condition;
(c) secure the Goods and/or Services from risk, damage and theft; and
(d) keep the Goods and/or Services fully insured against such risks that are usual or common to insure against in
a business of a similar nature to that of the Head Contractor.
(d) if the Goods and/or Services are processed or commingled with or made an accession to other Goods and/or
Services by the Head Contractor, the Head Contractor shall record and make available to the Sub-Contractor on
request the record of the date of the processing, or commingling or accession and hold the product, or mass or
whole in a way that clearly indicates the Sub-Contractor’s title to the product, or mass or whole.
(e) the Head Contractor shall not deal with the Goods and/or Services, either in their original state or as part of
a product, mass or whole, for a consideration of less value than the amount necessary to discharge the Head
Contractor’s liability to the Sub-Contractor in full for or in relation to the Goods and/or Services and shall retain
the consideration or other proceeds of the Goods and/or Services separate from all other property of the Head
Contractor and in a manner, which clearly identifies it as such consideration or other proceeds of the Goods
and/or Services, product, mass or whole (unless otherwise agreed in writing by the Sub-Contractor).
3.4 By accepting the Supply the Head Contractor agrees that:
(a) a Security Interest is created in favour of the Sub-Contractor within the meaning of the PPSA in:
(i) the Goods and/or Services;
(ii) the proceeds of sale of the Goods and/or Services;
(iii) any other property, to which the Goods and/or Services become an accession or with which they are
(iv) any product or mass, of which the Goods and/or Services become a part by manufacture, process, assembly
(b) the Security Interest secures:
(i) the Head Contractor’s obligation to pay for the Goods and/or Services, and
(ii) any and all other obligations of the Head Contractor to pay money or money’s worth (including costs,
expenses, damages or losses) for the benefit of the Sub-Contractor now or in the future or from time to time
under this agreement.
(c) to the extent the Sub-Contractor’s Security Interest secures the Head Contractors obligation to pay for any of
the Goods and/or Services, it constitutes as a PMSI;
3.5 With respect to the Sub-Contractor’s Security Interest while it is retained by the Sub-Contractor, the Head
(a) will when called upon by the Sub-Contractor sign any further documents or provide any further information
which the Sub-Contractor may reasonably require to register a financing statement or financing change statement
on the Personal Properties Security Register (“PPS Register”), or in connection with the issue of a verification
(b) will not register or apply to register a financing statement or financing change statement which is in any way
connected with the Goods and/or Services (or any accession, mass or product, of which they form part) without
the Sub-Contractor’s prior written consent, which may be given or withheld at the Sub-Contractor’s absolute
(c) will pay any costs or, expenses or losses incurred by the Sub-Contractor and keep the Sub-Contractor
indemnified against any loss, damage or liability to third parties incurred in relation to:
(i) registering or seeking the release of any document relating to the Sub-Contractor’s Security Interest on the
PPS Register; or
(ii) enforcing the Sub-Contractor’s security Interest (including its legal costs, on a solicitor-client basis);
(d) will give the Sub-Contractor at least 14 days written notice of any proposed change in its name, contact
details, place of incorporation, address, location, nature of business, ownership, or business practice; and
(e) it irrevocably appoints the Sub-Contractor to be the Head Contractor’s attorney to do anything which the
Head Contractor agrees to do under these Terms and Conditions and anything which the attorney thinks desirable
to protect the Sub-Contractors Security Interest and the Head Contractor will take all steps required to ratify
anything done by the attorney under this clause.
3.6 To the extent permitted by law, the Head Contractor waives its right to notices as a grantor under section 157
of the PPSA; acknowledging, that the collateral, subject of the Sub-Contractor’s Security Interest is properly
described as commercial property. To the extent that they impose any obligation on the Sub-Contractor or grant
any right to the Head Contractor and section 115(1) of the PPSA allows them to be excluded: sections 95, 118,
121(4), 125, 130, 132 (3), 132 (4), 135, 142, and 143 of the PPSA do not apply to this agreement or the SubContractor’s security interest in the Goods and/or Services. To the extent, that Part 4.3 of the PPSA imposes any
obligation on the Sub-Contractor or grants any right to the Head Contractor and s.115(7) permits, its application
pursuant to s.116(2) is excluded.
3.7 Notwithstanding the payment by the Head Contractor of part or all of the price relating to the Goods and/or
Services, any proceeds or other property in which the Sub-Contractor’s Security Interest will continue to exist in
the Goods and/or Services, any Proceeds of the Goods and/or Services or other property, in which the SubContractors Security Interest may apply (by operation by operation of these Terms and Conditions or statute) until
the Sub-Contractors Security Interest is discharged in writing by the Sub-Contractor.
3.8 The Head Contractor will not do, or omit to do, nor allow to be done or omitted to be done, anything which
might adversely affect the Sub-Contractors Security Interest.
3.9 If the Head Contractor sells the Goods and/or Services, either in their original state or as part of a product, mass
or whole to its Head Contractors, the Head Contractor, in its position as a fiduciary, assigns to the Sub-Contractor
and authorises the Sub-Contractor to sue in its name to recover the benefit of any claim against its Head Contractors
for the price of the Goods and/or Services, the product, mass or whole, and, in addition to its obligations under the
PPSA, it shall hold on trust for the Sub-Contractor and account to the Sub-Contractor for the consideration and all
proceeds received in relation to the Goods and/or Services, product, mass or whole.
3.10 This clause shall apply even though the Sub-Contractor may give credit to the Head Contractor.
3.11 Without limiting the rights or remedies available to the Sub-Contractor under these Terms and Conditions,
statute (including under the PPSA) or other law, if the Head Contractor;
(a) (being a natural person) commits an act of bankruptcy;
(b) (being a corporation) does anything which entitles anyone to apply to wind up the Head Contractor or is
subject to the appointment of an administrator or liquidator or receiver or controller or receiver and manager; or
(c)breaches any of these “Terms and Conditions”,(each of which is hereafter referred to as ‘an act of default’),
the Sub-Contractor may take possession of and retain, resell or otherwise dispose of the Goods and/or Services
or any product, mass or whole, of which they form part.
3.12 To the extent permitted by law, in the event of any such act of default, the Head Contractor authorises the SubContractor to enter premises where the Goods and/or Services may be located to take possession of the Goods
and/or Services or any product, mass or whole, of which they form part without notice to the Head Contractor. The
Head Contractor shall indemnify the Sub-Contractor against all claims arising out of the entry by the SubContractor into premises to take possession of the Goods and/or Services or any product, mass or whole, of which
they form part.
- Charge and Security Interest
4.1 The Head Contractor hereby charges with payment of any indebtedness to the Sub-Contractor all legal and
beneficial interest (freehold or leasehold) in land
and property, other than Personal Property to which the Personal Property Securities Act 2009 applies, held now or
in the future by the Head Contractor and upon non-payment of any monies due to the Sub-Contractor pursuant to
this Agreement the Sub-Contractor may take possession of such land or property and exercise and do all or any
acts, powers and authorities vested in or given to mortgagees by any statutory provision or at common law or in
equity. The Head Contractor agrees that if demand is made by the Sub-Contractor, the Head Contractor receiving
such a demand will immediately execute a mortgage (incorporating the covenants contained in Memorandum
No.Q860000 registered at the Land Titles Office in Sydney) or other instrument of security, or consent to a caveat,
as required, and against the event that the Head Contractor fails to do so within a reasonable time of being so
requested, the Head Contractor hereby irrevocably and by way of security, appoints any credit manager or solicitor
engaged by the Sub-Contractor to be its true and lawful attorney to execute and register such instruments.
Notwithstanding any other provision in this clause and in addition thereto the Sub-Contractor may lodge a caveat
noting the interest given by this charge on the title of any property of the Head Contractor whenever it so wishes.
4.2 The Head Contractor grants a security interest to the Sub-Contractor in all of its present and after acquired
property and in all of its present and future rights in relation to any personal property as defined in the Personal
Property Securities Act 2009.
5.1 All emails, documents, images or other recorded information held or used by the Sub-Contractor is Personal
Information, as defined and referred to in clause 16.3, and therefore considered Confidential Information. The SubContractor 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 111C 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 Sub-Contractor acknowledges that in the event
it becomes aware of any data breaches and/or disclosure of the Head Contractor’s Personal Information held by the
Sub-Contractor that may result in serious harm to the Head Contractor, the Sub-Contractor will notify the Head
Contractor in accordance with the Act and/or 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 Head Contractor by written
consent, unless subject to an operation of law.
5.2 Notwithstanding Clause 16.1, privacy limitations will extend to the Sub-Contractor in respect of Cookies where
transactions for purchases/orders transpire directly from the Sub-Contractor’s website. The Sub-Contractor 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 Head Contractor’s:
(a) IP address, browser, email Head Contractor type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Sub-Contractor when the Sub-Contractor sends and email to the Head Contractor,
so the Sub-Contractor may collect and review that information (“collectively Personal Information”).
In order to enable/disable the collection of Personal Information by way of Cookies, the Head Contractorshall have
the right to enable/disable the Cookie’s first by selection the option to enable/disable provided on the website prior
to proceeding with a purchase/order via the Sub-Contractor’s website.
5.3 The Head Contractor agrees for the Sub-Contractor to obtain from a credit reporting body (CRB) a credit report
containing personal credit information (e.g. 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) about the Head Contractor in relation to credit
provided by the Sub-Contractor.
5.4 The Head Contractor agrees that the Sub-Contractor may exchange information about the Head Contractor with
those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Head Contractor; and/or
(b) to notify other credit providers of a default by the Head Contractor; and/or
(c) to exchange information with other credit providers as to the status of this credit account where the Head
Contractor is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Head Contractor including the Head Contractor’s repayment history in
the preceding two (2) years.
5.5 The Head Contractor consents to the Sub-Contractor being given a consumer credit report to collect overdue
payment on commercial credit.
5.6 The Head Contractor agrees that personal credit information provided may be used and retained by the SubContractor for the following purposes (and for other agreed purposes or required by law from time to time):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Head Contractor’s credit, payment and/or status in relation to the
provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Head
(d) enabling the collection of amounts outstanding in relation to the Services.
5.7 The Sub-Contractor may give information about the Head Contractor 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 Head Contractor including credit
5.8 The information given to the CRB may include:
(a) Personal Information as outlined in 16.3 above;
(b) name of the credit provider and that the Sub-Contractor is a current credit provider to the Head Contractor;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Head Contractor’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 Head Contractor no longer has any overdue accounts
and the Sub-Contractor has been paid or otherwise discharged and all details surrounding that discharge (e.g.
dates of payment);
(g) information that, in the opinion of the Sub-Contractor, the Head Contractor has committed a serious credit
(h) advice that the amount of the Head Contractor’s overdue payment is equal to or more than one hundred and
fifty dollars ($150).
5.9 The Head Contractor shall have the right to request (via email) from the Sub-Contractor:
(a) a copy of the Personal Information about the Head Contractor retained by the Sub-Contractor and the right to
request that the Sub-Contractor correct any incorrect Personal Information; and
(b) that the Sub-Contractor does not disclose any Personal Information about the Head Contractor for the purpose
of direct marketing.
5.10 The Sub-Contractor will destroy all Personal Information upon the Head Contractor’s request (via email) or if
it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be
maintained and/or stored in accordance with the law.
5.11 The Head Contractor can make a privacy complaint by contact the Sub-Contractor via email. The SubContractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make
a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Head
Contractor is not satisfied with the resolution provided, the Head Contractor can make a complaint to the
Information Commissioner at www.oaic.gov.au