Flight Stairways Pty Ltd – Terms & Conditions of Trade

1. Definitions
1.1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Flight Stairways to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.2 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.3 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.4 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using Flight Stairways’ website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.5 “Flight Stairways” means Flight Stairways Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Flight Stairways Pty Ltd.
1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.7 “Intended Use” means a product and the use thereof, for which the building product is intended to be, or is reasonably likely to be, associated with a building.
1.8 “Non-Conforming Product” means products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:
(a) the product is not, or will not be, safe; or
(b) does not, or will not, comply with the relevant regulatory provisions; or
(c) the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.
1.9 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between Flight Stairways and the Client in accordance with clause 7 below.
1.10 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by Flight Stairways to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.11 “Worksite” means the address nominated by the Client to which the Materials/Works are to be supplied by Flight Stairways.

2. Acceptance
2.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Works.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges and accepts that the supply of Works on credit shall not take effect until the Client has completed a credit application with Flight Stairways and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Flight Stairways reserves the right to refuse delivery.
2.6 Any advice, recommendation, information, assistance, or service provided by Flight Stairways in relation to Materials or Works supplied is given in good faith to the Client, or the Client’s agent and is based on Flight Stairways’ own knowledge and experience and shall be accepted without liability on the part of Flight Stairways. Where such advice or recommendations are not acted upon then Flight Stairways shall require the Client or their agent to authorise commencement of the Works in writing. Flight Stairways shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works. Accordingly, Flight Stairways offers no warranty in regard to the aforementioned.
2.7 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, Flight Stairways reserves the right to substitute comparable Materials (or components of the Materials) and vary the Price as per clause 7.2. In all such cases Flight Stairways will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Works on hold, as per clause 8.2 until such time as Flight Stairways and the Client agree to such changes.
2.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (NSW), Section 9 of the Electronic Transactions Act 2001 (ACT), (whichever is applicable), or any other applicable provisions of that Act or any Regulations referred to in that Act.

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

4. Errors and Omissions
4.1 The Client acknowledges and accepts that Flight Stairways 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 Flight Stairways 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 Flight Stairways in respect of the Works.
4.2 In circumstances where the Client is required to place an order for Materials, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Materials (whether they are made to order Materials or not) (“Client Error”). The Client must pay for all Materials it orders from Flight Stairways notwithstanding that such Materials suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take delivery of such Materials. Flight Stairways is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

5. Change in Control
5.1 The Client shall give Flight Stairways not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by Flight Stairways as a result of the Client’s failure to comply with this clause.

6. Credit Card Information
6.1 Flight Stairways will:
(a) keep the Client’s personal details, including credit card details for only as long as is deemed necessary by Flight Stairways;
(b) not disclose the Client’s credit card details to any third party; and
(c) not unnecessarily disclose any of the Client’s personal information, except is accordance with the Privacy Act (clause 22) or where required by law.
6.2 The Client expressly agrees that, if pursuant to this Contract, there are any unpaid charges, other amounts due and outstanding by the Client, Flight Stairways is entitled to immediately charge the Client’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Client pursuant to the terms of this Contract.

7. Price and Payment
7.1 At Flight Stairways’ sole discretion, the Price shall be either:
(a) as indicated on invoices provided by Flight Stairways to the Client in respect of Works performed or upon placement if an order for the Materials; or
(b) Flight Stairways’ quoted Price (subject to clause 7.2) which shall be binding upon Flight Stairways provided that the Client shall accept Flight Stairways’ quotation in writing within thirty (30) days.
7.2 Flight Stairways 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 Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, obscured building/Worksite defects, incorrect measurements, plans and/or specifications provided by the Client, as a result of delays from third party suppliers, availability of machinery, safety considerations (discovery of asbestos or other hazardous substances, etc.), change of design, prerequisite work by any third party not being completed, lack of required utilities, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, hard rock barriers below the surface, iron reinforcing rods in concrete or hidden pipes and wiring, etc.) which are only discovered on commencement of the Works; or
(d) in the event of increases to Flight Stairways in the cost of labour or Materials which are beyond Flight Stairways’ control.
7.3 Variations will be charged for on the basis of Flight Stairways’ quotation, and will be detailed in writing, and shown as variations on Flight Stairways’ invoice. The Client shall be required to respond to any variation submitted by Flight Stairways within ten (10) working days. Failure to do so will entitle Flight Stairways 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.
7.4 At Flight Stairways’ sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for Materials, in accordance with any quotation provided by Flight Stairways or as notified to the Client prior to the placement of an order for Materials.
7.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Flight Stairways, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with Flight Stairways’ specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations, and the value of any Materials delivered to the Worksite but not yet installed; or
(c) the date which is either seven (7), fourteen (14) or thirty (30) days following the date of any invoice or other form as being the date for payment; or
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Flight Stairways.
7.6 The Client acknowledges and accepts that payment for the completion of the installation of stairs must be made in accordance with Flight Stairways’ quotation, regardless of subsequent work of other trades, such as plastering. In the event payment is not received within the specified timeframe, a late payment fee shall be charged in accordance with clause 20.1. Flight Stairways reserves the right to suspend work in accordance with clause 8.2, including the installation of handrails, until such time as payment has been received as agreed by both parties.
7.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Flight Stairways.
7.8 Flight Stairways may in its discretion allocate any payment received from the Client towards any invoice that Flight Stairways determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Flight Stairways may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Flight Stairways, payment will be deemed to be allocated in such manner as preserves the maximum value of Flight Stairways’ Purchase Money Security Interest (as defined in the PPSA) in the Materials.
7.9 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Flight Stairways nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify Flight Stairways in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as Flight Stairways investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in Flight Stairways placing the Client’s account into default and subject to default interest in accordance with clause 20.1.
7.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Flight Stairways an amount equal to any GST Flight Stairways must pay for any supply by Flight Stairways under this or any other Contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

8. Provision of the Works
8.1 Subject to clause 8.2 it is Flight Stairways’ responsibility to ensure that the Works start as soon as it is reasonably possible.
8.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Flight Stairways claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Flight Stairways’ control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the Worksite ready for the Works; or
(c) notify Flight Stairways that the Worksite is ready.
8.3 Any time specified by Flight Stairways for delivery of the Works is an estimate only and Flight Stairways will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that Flight Stairways is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Flight Stairways shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

9. Risk
9.1 If Flight Stairways retains ownership of the Materials under clause 15 then:
(a) where Flight Stairways is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. The cost of delivery will be payable by the Client in accordance with the quotation provided by Flight Stairways to the Client, or as otherwise notified to the Client prior to the placement of an order for the Materials. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:
(i) the Client or the Client’s nominated carrier takes possession of the Materials at Flight Stairways’ address; or
(ii) the Materials are delivered by Flight Stairways or Flight Stairways’ nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(b) where Flight Stairways is to both supply and install Materials then Flight Stairways shall maintain a Contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
9.2 Notwithstanding the provisions of clause 9.1 if the Client specifically requests Flight Stairways to leave Materials outside Flight Stairways’ premises for collection or to deliver the Materials to an unattended location then such Materials shall always be left at sole risk of the Client and it shall be the Client’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 Client’s expense.
9.3 The Client warrants that the structure of the building/s in or upon which Materials are to be installed or erected is sound and will sustain the installation and Works incidental thereto, and Flight Stairways shall not be liable for any claims, demands, losses, damages, costs, and expenses howsoever caused or arising should the building/s be unable to accommodate the installation.
9.4 The Client acknowledges that Flight Stairways is only responsible for parts that are replaced/provided by Flight Stairways and does not at any stage accept any liability in respect of components supplied by any other third party that subsequently fail and are found to be the source of the failure, the Client agrees to indemnify Flight Stairways against any loss or damage thereto, or caused thereby, or any part thereof howsoever arising.
9.5 The Client acknowledges and agrees that Flight Stairways’ standard fixing method is before tiling. Whilst this helps to prevent breakage of tiles or damage to brick work/concrete, during the installation process damage can occur in rare instances. The Client agrees it shall be their responsibility to fix any damage that does occur.
9.6 Flight Stairways recommends that balustrades should be installed prior to waterproofing and tiling of the surface. In the event the installation is required after tiling and waterproofing, all holes will be silicone sealed however, Flight Stairways does not guarantee that this will be one hundred percent (100%) waterproof and shall not be held liable in the event of any leaks.
9.7 Whilst Flight Stairways will take all due care during installation Flight Stairways will not accept any responsibility for:
(a) tiles, granite, timber, carpet, or pavers damaged during installation; or
(b) damage to any undisclosed electrical wiring, plumbing and anything else that is behind walls, brick work or in slab work.
9.8 Timber is a natural product and as such colour, shade tone, markings, and veining may vary from samples provided. Whilst Flight Stairways will make every effort to match sales samples to the finished Materials, Flight Stairways accepts no liability whatsoever where the samples differ to the finished Materials.
9.9 The Client acknowledges that Materials supplied may:
(a) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time;
(b) expand, contract, or distort as a result of exposure to heat, cold, weather;
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.

10. Dimensions, Plans and Specifications
10.1 Flight Stairways shall make every effort to accurately facilitate the plans and specifications originally agreed to by the Client. Nonetheless, the Client accepts that Flight Stairways may make variations or adjustments to the designs in order to comply with specifications of the Building Code of Australia. All such variations are to be agreed upon prior to change by both parties and any additional costs shall be borne by the Client.
10.2 Flight Stairways shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client and/or the Client’s agent. Flight Stairways accepts no responsibility for faulty or defective workmanship as a consequence of errors or omissions in the design documentation.
10.3 In the event the Client gives information relating to measurements and quantities of Materials required in completing the Works, it is the Client’s responsibility to verify the accuracy of the measurements and quantities before the Client or Flight Stairways places an order based on these measurements and quantities and in the case of a quotation before acceptance of that quotation. Flight Stairways accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
10.4 Flight Stairways will not consider any claim in respect of zero construction tolerance. Tolerances may vary between workshop fabrication and installation.

11. Worksite Access and Condition
11.1 The Client shall ensure that Flight Stairways has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). Flight Stairways shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Flight Stairways.
11.2 The Client agrees to be present at the Worksite when and as reasonably requested by Flight Stairways and its employees, contractors and/or agents.
11.3 Worksite Inductions
(a) in the event the Client requires an employee or sub-contractor of Flight Stairways to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay Flight Stairways’ standard (and/or overtime, if applicable) hourly labour rate; or
(b) where Flight Stairways is in control of the Worksite, the Client and/or the Client’s third-party contractors must initially carry out Flight Stairways’ Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by Flight Stairways.

12. Underground Locations
12.1 Prior to Flight Stairways commencing any work the Client must advise Flight Stairways of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Client 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 the Worksite.
12.2 Whilst Flight Stairways will take all care to avoid damage to any underground services the Client agrees to indemnify Flight Stairways 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 12.1.

13. Compliance with Laws
13.1 The Client and Flight Stairways shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any work health and safety laws (WHS) relating or any other relevant safety standards or legislation pertaining to the Works.
13.2 Both parties acknowledge and agree:
(a) to comply with the National Construction Code of Australia (NCC) and the Building Products (Safety) Act 2017 (NSW) or the Building Act 2004 (ACT), in respect of all workmanship and building products to be supplied during the course of the Works; and
(b) that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
13.3 Where the Client has supplied products for Flight Stairways to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in Flight Stairways’ opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with state and/or territory regulations, then Flight Stairways shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 7.2.
13.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

14. Modern Slavery
14.1 For the purposes of this clause:
(a) “Act” means the Modern Slavery Act 2018 (cth)
(b) “Modern Slavery”, “Modern Slavery Statement” and “Reporting Entity” have the meanings given by the Act.
14.2 If the Client is a Reporting Entity, it shall comply with all of its obligations under the Act.
14.3 Whether the Client is a Reporting Entity or not, the Client shall:
(a) use reasonable endeavours to identify, assess and address risks of Modern Slavery practices in its operations and supply chains;
(b) use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes of the Contract have undertaken suitable training to identify and report Modern Slavery;
(c) use its reasonable endeavours to ensure that if at any time the Client becomes aware of Modern Slavery practices in its operations and supply chains, the Client must as soon as reasonably practicable take all reasonable steps to address or remove these practices;
(d) provide to Flight Stairways a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and
(e) within seven (7) days of Flight Stairways’ request (or such longer period as Flight Stairways agrees), provide to Flight Stairways any information or assistance reasonable requested by Flight Stairways;
(i) concerning the Client’s compliance with the Act;
(ii) concerning the Client’s operations and supply chains;
(iii) to enable Flight Stairways to prepare a Modern Slavery Statement or otherwise comply with the Act; or
(iv) to enable Flight Stairways to assess and address risks of Modern Slavery practices in its operations and supply chains.
14.4 The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach by way of remediation and Flight Stairways will be able to terminate the Contract for any breach by the Client.
14.5 The Client warrants that any information supplied to Flight Stairways is true and accurate and may be relied upon for the purposes of the Act.
14.6 The Client shall indemnify Flight Stairways against any loss or liability suffered by Flight Stairways as a result of the Client’s breach of this clause 14.

15. Title
15.1 Flight Stairways and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid Flight Stairways all amounts owing to Flight Stairways; and
(b) the Client has met all of its other obligations to Flight Stairways.
15.2 Receipt by Flight Stairways 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.
15.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 15.1:
(a) the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Flight Stairways on request;
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for Flight Stairways and must pay to Flight Stairways 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 Flight Stairways shall be sufficient evidence of Flight Stairways’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Flight Stairways to make further enquiries;
(d) the Client 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 Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for Flight Stairways and must pay or deliver the proceeds to Flight Stairways on demand;
(e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Flight Stairways and must sell, dispose of or return the resulting product to Flight Stairways as it so directs;
(f) unless the Materials have become fixtures the Client irrevocably authorises Flight Stairways to enter any premises where Flight Stairways believes the Materials are kept and recover possession of the Materials;
(g) Flight Stairways may recover possession of any Materials in transit whether or not delivery has occurred;
(h) the Client 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 Flight Stairways; and
(i) Flight Stairways may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

16. Personal Property Securities Act 2009 (“PPSA”)
16.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
16.2 Upon assenting to these terms and conditions in writing the Client 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 Client to Flight Stairways for Works – that have previously been supplied and that will be supplied in the future by Flight Stairways to the Client.
16.3 The Client 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 Flight Stairways may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 16.3(a)(i) or 16.3(a)(ii).
(b) indemnify, and upon demand reimburse, Flight Stairways for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Flight Stairways;
(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 Flight Stairways; and
(e) immediately advise Flight Stairways 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.
16.4 Flight Stairways and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
16.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
16.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
16.7 Unless otherwise agreed to in writing by Flight Stairways, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
16.8 The Client shall unconditionally ratify any actions taken by Flight Stairways under clauses 16.3 to 16.5.
16.9 Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

17. Security and Charge
17.1 In consideration of Flight Stairways agreeing to supply the Materials and/or provide its Works, the Client grants Flight Stairways a security interest by way of a floating charge (registerable by Flight Stairways pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Materials and/or Works under this Contract and/or permit Flight Stairways to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).
17.2 The Client indemnifies Flight Stairways from and against all Flight Stairways’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Flight Stairways’ rights under this clause.
17.3 In the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 15.1,16.2, and 17.1 as applicable, is deemed insufficient by Flight Stairways to secure the repayment of monies owed by the Client to Flight Stairways, the Client hereby grants Flight Stairways a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money.

18. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
18.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify Flight Stairways in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Flight Stairways to inspect the Materials or to review the Works provided.
18.2 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).
18.3 Flight Stairways acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
18.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Flight Stairways makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. Flight Stairways’ liability in respect of these warranties is limited to the fullest extent permitted by law.
18.5 If the Client is a consumer within the meaning of the CCA, Flight Stairways’ liability is limited to the extent permitted by section 64A of Schedule 2.
18.6 If Flight Stairways is required to replace any Materials under this clause or the CCA, but is unable to do so, Flight Stairways may refund any money the Client has paid for the Materials.
18.7 If Flight Stairways is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then Flight Stairways may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
18.8 If the Client is not a consumer within the meaning of the CCA, Flight Stairways’ 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 Client by Flight Stairways at Flight Stairways’ sole discretion;
(b) limited to any warranty to which Flight Stairways is entitled, if Flight Stairways did not manufacture the Materials; and/or
(c) otherwise negated absolutely.
18.9 Subject to this clause 18, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 18.1; and
(b) Flight Stairways has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Client’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.
18.10 Notwithstanding clauses 18.1 to 18.9 but subject to the CCA, Flight Stairways 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 Client failing to properly maintain or store any Materials;
(b) the Client using the Materials for any purpose other than that for which they were designed;
(c) the Client 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 Works by the Client or any third party without Flight Stairways’ prior approval;
(e) the Client failing to follow any instructions or guidelines provided by Flight Stairways; and/or
(f) fair wear and tear, any accident, or act of God.
18.11 Notwithstanding anything contained in this clause if Flight Stairways is required by a law to accept a return then Flight Stairways will only accept a return on the conditions imposed by that law.

19. Intellectual Property
19.1 Where Flight Stairways has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Flight Stairways, and shall only be used by the Client at Flight Stairways’ discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Flight Stairways.
19.2 The Client warrants that all designs, specifications or instructions given to Flight Stairways will not cause Flight Stairways to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Flight Stairways against any action taken by a third party against Flight Stairways in respect of any such infringement.
19.3 The Client agrees that Flight Stairways may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Flight Stairways has created for the Client.

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 Flight Stairways’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Client owes Flight Stairways any money, the Client shall indemnify Flight Stairways from and against all costs and disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Client would be liable;
in regard to legal costs on a solicitor and own client basis incurred in exercising Flight Stairways’ rights under these terms and conditions, internal administration fees, Flight Stairways’ Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
20.3 Further to any other rights or remedies Flight Stairways may have under this Contract, if a Client has made payment to Flight Stairways, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Flight Stairways under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
20.4 Without prejudice to Flight Stairways’ other remedies at law Flight Stairways shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Flight Stairways shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Flight Stairways becomes overdue, or in Flight Stairways’ opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by Flight Stairways;
(c) the Client 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 Client or any asset of the Client.

21. Cancellation
21.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Materials and/or Works to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
21.2 If Flight Stairways, due to reasons beyond Flight Stairways’ reasonable control, is unable to deliver any Materials and/or Works to the Client, Flight Stairways may cancel any Contract to which these terms and conditions apply or cancel delivery of Materials and/or Works at any time before the Materials and/or Works are delivered by giving written notice to the Client. On giving such notice Flight Stairways shall repay to the Client any money paid by the Client for the Materials and/or Works. Flight Stairways shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3 The Client may cancel delivery of the Materials and/or Works by written notice served within forty-eight (48) hours of placement of the order. If the Client cancels delivery in accordance with this clause 21.3, the Client will not be liable for the payment of any costs of Flight Stairways, except where a deposit is payable in accordance with clause 7.4. Failure by the Client to otherwise accept delivery of the Materials and/or Works shall place the Client in breach of this Contract.
21.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

22. Privacy Policy
22.1 All emails, documents, images or other recorded information held or used by Flight Stairways is Personal Information, as defined and referred to in clause 22.3, and therefore considered Confidential Information. Flight Stairways acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Flight Stairways acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Flight Stairways that may result in serious harm to the Client, Flight Stairways will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
22.2 Notwithstanding clause 22.1, privacy limitations will extend to Flight Stairways in respect of Cookies where the Client utilises Flight Stairways’ website to make enquiries. Flight Stairways 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 Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Flight Stairways when Flight Stairways sends an email to the Client, so Flight Stairways may collect and review that information (“collectively Personal Information”).
If the Client consents to Flight Stairways’ use of Cookies on Flight Stairways’ website and later wishes to withdraw that consent, the Client may manage and control Flight Stairways’ privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
22.3 The Client agrees for Flight Stairways 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 Client in relation to credit provided by Flight Stairways.
22.4 The Client agrees that Flight Stairways may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
22.5 The Client consents to Flight Stairways being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
22.6 The Client agrees that personal credit information provided may be used and retained by Flight Stairways for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Works.
22.7 Flight Stairways may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report; and/or
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
22.8 The information given to the CRB may include:
(a) Personal Information as outlined in 22.3 above;
(b) name of the credit provider and that Flight Stairways is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults (provided Flight Stairways is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Flight Stairways has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Flight Stairways, the Client has committed a serious credit infringement; and/or
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
22.9 The Client shall have the right to request (by e-mail) from Flight Stairways:
(a) a copy of the Personal Information about the Client retained by Flight Stairways and the right to request that Flight Stairways correct any incorrect Personal Information; and
(b) that Flight Stairways does not disclose any Personal Information about the Client for the purpose of direct marketing.
22.10 Flight Stairways will destroy Personal Information upon the Client’s request (by e-mail) 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.
22.11 The Client can make a privacy complaint by contacting Flight Stairways via e-mail. Flight Stairways 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 Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

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; or
(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 Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not Flight Stairways may have notice of the Trust, the Client covenants with Flight Stairways as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
(b) the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be 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 Client against the Trust, the trustees and the trust fund. The Client 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 Client will not during the term of the Contract without consent in writing of Flight Stairways (Flight Stairways will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client 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 fund or trust property.

25. Other Applicable Legislation
25.1 At Flight Stairways’ sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payments Act 1999 (New South Wales) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
25.2 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 25.1 (each as applicable), except to the extent permitted by the Act where applicable.

26. General
26.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
26.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
26.3 These terms and conditions and any contract to which they apply shall be governed by the laws of either New South Wales or the Australian Capital Territory in which state or territory the Materials and/or Works were provided by Flight Stairways to the Client however, in the event of a dispute that deems necessary for the matter to be referred to a Magistrates or higher Court then jurisdiction will be subject to the Queanbeyan Courts in the state of New South Wales in which Flight Stairways has its principal place of business. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
26.4 Flight Stairways may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
26.5 The Client cannot licence or assign without the written approval of Flight Stairways.
26.6 Flight Stairways may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Flight Stairways’ sub-contractors without the authority of Flight Stairways.
26.7 The Client agrees that Flight Stairways may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Flight Stairways to provide Works to the Client.
26.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc., (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to Flight Stairways, once the parties agree that the Force Majeure event has ceased.
26.9 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.
26.10 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
26.11 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.