1. DEFINITIONS
“KJ” means Kings Joinery Capital Pty Ltd (ACN 632 826 503) T/A Kings Joinery Capital and its successors and assigns or any person acting on behalf of and with the authority of KJ.
“CCA” means Completion and Consumer Act 2010 (Cth).
“Client” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one, Client is a reference to each Client jointly and severally.
“Materials” means all goods, items, equipment, and plant mentioned in the order placed by the Client and issued to KJ or on an invoice issued by KJ to the Client.
“Price” means the Price payable for the Works as agreed between KJ and the Client in accordance with clause 4 below.
“Site” means the address where the Works are to be carried out, as agreed between KJ and the Client in writing.
“Terms and Conditions” means the Terms and Conditions contained in this document.
“Works” means all work performed by KJ at the Client’s request (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
2.ACCEPTANCE
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts a quote for any Works to be performed or the delivery of any Works.
2.2 These terms and conditions may only be amended with KJ’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and KJ.
3.CHANGE IN CONTROL
3.1 The Client shall give KJ not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client (including any sale or transfer of 25% or more of the Client’s share capital) 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, or business practice). The Client shall be liable for any loss incurred by KJ as a result of the Client’s failure to comply with this clause.
4.PRICE AND PAYMENT
4.1 At KJ’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by KJ to the Client in respect of Works performed or Materials supplied; or
(b) KJ’s quoted Price (subject to clause 4.2) which shall be binding upon KJ provided that the Client shall accept KJ’s quotation in writing within thirty (30) days.
4.2 KJ 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, limitations to accessing the Site, prerequisite work by any third party not being completed or hidden services, etc) which are only discovered on or after commencement of the Works; or
(d) in the event of increases to KJ in the cost of labour or materials which are beyond KJ’s control.
4.3 At KJ’s sole discretion a deposit may be required.
4.4 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by KJ, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with KJ’s 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 Site but not yet installed; or
(c) thirty (30) days following the end of the month in which a statement is sent to the Client’s address or address for notices;
(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 KJ.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to 3 percent of the Price), or by any other method as agreed to between the Client and KJ.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to KJ an amount equal to any GST KJ must pay for any supply by KJ under this or any other agreement 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.
5. DELIVERY
5.1 Subject to clause 5.2 it is KJ’s responsibility to ensure that the Works start as soon as it is reasonably possible.
5.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that KJ claims an extension of time (by giving the Client notice) where completion is delayed by an event beyond KJ’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the Site ready for the Works; or
(c) notify KJ that the Site is ready.
5.3 At KJ’s sole discretion the cost of delivery is included in the Price.
5.4 KJ may deliver the Works and/or Materials by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by KJ to the Client is an estimate only. KJ shall not be liable for any loss or damage whatsoever due to failure by KJ to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of KJ.
6. RISK
6.1 If KJ retains ownership of the Materials under clause 9 then:
(a) where KJ 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. 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 KJ’s address; or
(ii) the Materials are delivered by KJ or KJ’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(b) where KJ is to both supply and install Materials then KJ 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.
6.2 Despite clause 6.1 if the Client specifically requests KJ to leave Materials outside KJ’s 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.
6.3 The Works will be inspected by the Client prior to completion of the Works, and if the Client fails to do so, then they are taken to have done so and to have approved the Works.
6.4 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials. If KJ forms the opinion that the Client’s premises are not safe or unsuitable for the installation of Materials to proceed then KJ shall be entitled to delay installation of the Materials (in accordance with clause 5.2 above) until KJ is satisfied that it is safe or suitable for the installation to proceed.
6.5 Where the Client has supplied materials for KJ to complete the Works, the Client acknowledges that he accepts responsibility for those supplied materials.
6.6 The Client agrees to indemnify KJ against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising.
7 ACCESS
7.1 The Client shall ensure that KJ has clear and free access to the work Site at all times to enable them to undertake the Works. KJ shall not be liable for any loss or damage to the Site unless due to the negligence of KJ.
8. UNDERGROUND LOCATIONS
8.1 Prior to KJ commencing any Works the Client must advise KJ of the precise location of all services on the Site and clearly mark the same.
8.2 Whilst KJ will take all care to avoid damage to any services the Client agrees to indemnify KJ 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 8.1.
9. TITLE
9.1 KJ and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid KJ all amounts owing to KJ; and
(b) the Client has met all of its other obligations to KJ.
9.2 Receipt by KJ 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.
9.3 It is further agreed that until ownership of the Materials and Works passes to the Customer in accordance with clause 9.1:
(a) the Client is only a bailee of the Materials and must return the Materials to KJ on request;
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for KJ and must pay to KJ 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 KJ shall be sufficient evidence of KJ’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with KJ 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 KJ and must pay or deliver the proceeds to KJ 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 KJ and must sell, dispose of or return the resulting product to KJ as it so directs;
(f) the Client irrevocably authorises KJ to enter any premises where KJ believes the Materials are kept and recover possession of the Materials at the cost and expense of the Client;
(g) KJ 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 KJ; and
(i) KJ may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
10. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 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 that have previously been supplied and that will be supplied in the future by KJ to the Client.
10.3 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 KJ 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 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, KJ for all expenses incurred KJ exercising its rights under this clause 10, including but limited to 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 KJ;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of PP; and
(e) immediately advise KJ of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
10.4 KJ 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.
10.5 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.
10.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by KJ, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client shall unconditionally ratify any actions taken by KJ under clauses 10.3 to 10.5.
10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10.10 KJ reserves its right to exercise any rights KJ has under this clause 10. Nothing in this clause places any obligation on KJ whatsoever. Nothing in this clause entitles the Client to any setoff, however occurring, including but not limited to, KJ’s failure or delay to exercise any of its rights or register or perfect any interest in any security however occurring. KJ has the exclusive right and sole discretion to pursue the Client, in manner open to KJ at law, for the full amount of any monies owing despite any security it may hold and, in any order, or manner KJ deems fit.
11. SECURITY AND CHARGE
11.1 In consideration of KJ agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 KJ reserves its right to exercise any rights KJ has under this clause 11. Nothing in this clause places any obligation on KJ whatsoever. Nothing in this clause entitles the Client to any setoff, however occurring, including but not limited to, KJ’s failure or delay to exercise any of its rights or register or perfect any interest in any security however occurring. KJ has the exclusive right and sole discretion to pursue the Client, in manner open to KJ at law, for the full amount of any monies owing despite any security it may hold and, in any order, or manner KJ deems fit.
11.3 The Client indemnifies KJ from and against all KJ’s costs and disbursements including legal costs on an indemnity basis incurred in exercising KJ’s rights under this clause 11.
11.4 The Client irrevocably appoints KJ and each director of KJ as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
12. DEFECTS, WARRANTIES AND RETURNS, CCA
12.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify KJ 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 KJ to inspect the Materials or to review the Works provided.
12.2 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).
12.3 KJ acknowledges that nothing in these Terms and Conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, KJ makes no warranties or other representations under these Terms and Conditions including but not limited to the quality or suitability of the Materials/Works. KJ’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, KJ’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If KJ is required to replace any Materials under this clause or the CCA, but is unable to do so, KJ may refund any money the Client has paid for the Materials.
12.7 If KJ 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 KJ 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.
12.8 If the Client is not a consumer within the meaning of the CCA, KJ’s 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 KJ at KJ’s sole discretion;
(b) limited to any warranty to which KJ is entitled, if KJ did not manufacture the Materials;
(c) otherwise negated absolutely.
12.9 Subject to this clause 12, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 12.1; and
(b) KJ 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.
12.10 Notwithstanding clauses 12.1 to 12.9 but subject to the CCA, KJ 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 PP prior approval;
(e) the Client failing to follow any instructions or guidelines provided by PP;
(f) fair wear and tear, any accident, or act of God.
12.11 KJ may in its absolute discretion accept non-defective Materials for return in which case KJ may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Materials plus any freight costs.
12.12 Notwithstanding anything contained in this clause if KJ is required by a law to accept a return then KJ will only accept a return on the conditions imposed by that law.
13. INTELLECTUAL PROPERTY
13.1 Where KJ 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 KJ, and shall only be used by the Client at KJ’s discretion.
13.2 The Client warrants that all designs, specifications or instructions given to KJ will not cause KJ to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify KJ against any action taken by a third party against KJ in respect of any such infringement.
13.3 The Client agrees that KJ may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which KJ has created for the Client.
14. DEFAULT AND CONSEQUENCES OF DEFAULT
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2.5 percent per calendar month (and at KJ’s sole discretion such interest shall compound monthly at such a rate) after as well as before any order/judgment.
14.2 If the Client owes KJ any money the Client shall indemnify KJ from and against all costs and disbursements incurred by KJ in recovering the debt (including but not limited to internal administration fees, legal costs on an indemnity basis, KJ contract default fees, and bank dishonour fees).
14.3 Without prejudice to any other remedies KJ may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these Terms and Conditions KJ may suspend or terminate the supply of Works to the Client. KJ will not be liable to the Client for any loss or damage the Client suffers because KJ has exercised its rights under this clause.
14.4 Without prejudice to KJ other remedies at law KJ shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to KJ shall, whether or not due for payment, become immediately payable if:
(a) any money payable to KJ becomes overdue, or in KJ opinion the Client will be unable to make a payment when it falls due;
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15. CANCELLATION
15.1 KJ may cancel any contract to which these Terms and Conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice KJ shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to KJ for Works already performed. KJ shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by KJ as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.3 Cancellation of orders for products made to the Client’s specifications will not be accepted once production has commenced, or an order has been placed.
16. PRIVACY ACT 1988
16.1 The Client agrees for KJ to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by KJ.
16.2 The Client agrees that KJ may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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. The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3 The Client consents to KJ being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by KJ for the following purposes (and for other purposes as shall be agreed between the Client and KJ or required by law from time to time):
(a) the provision of Works; and/or
(b) the marketing of Works by KJ, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Works.
16.5 KJ may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that KJ is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of KJ, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by KJ has been paid or otherwise discharged.
17. UNPAID SELLER’S RIGHTS
17.1 Where the Client has left any item with KJ for repair, modification, exchange or for KJ to perform any other service in relation to the item and KJ has not received or been tendered the whole of any monies owing to it by the Client, KJ shall have, until all monies owing to KJ are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
17.2 The lien of KJ shall continue despite the commencement of proceedings, or judgment for any monies owing to KJ having been obtained against the Client.
18. DISPUTE RESOLUTION
18.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute.
18.2 KJ need not comply with clause 18.1 and can enforce any legal right it has against the Client at any time.
19. COMPLIANCE WITH LAWS
19.1 The Client and KJ shall comply with the provisions of all statutes, regulations and by-laws of government, local and other public authorities that may be applicable to the Works.
19.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
19.3 The Client agrees that the Site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
20. BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENTS ACT 1999 (NSW) (WHERE APPLICABLE)
20.1 At KJ’s 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 may apply.
20.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
21. BUILDING AND CONSTRUCTION INDUSTRY (SECURITY OF PAYMENT) ACT 2009 (ACT) (WHERE APPLICABLE)
21.1 At KJ’s 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 Payment) Act 2009 may apply.
21.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry (Security of Payment) Act 2009 of the Australian Capital Territory, except to the extent permitted by the Act where applicable.
22. GENERAL
22.1 The failure by KJ to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect KJ’s right to subsequently enforce that provision. If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Australian Capital Territory and are subject to the jurisdiction of the courts in the Australian Capital Territory.
22.3 Subject to clause 12 KJ shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by KJ of these terms and conditions (alternatively KJ’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
22.4 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 KJ nor to withhold payment of any invoice because part of that invoice is in dispute.
22.5 KJ may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
22.6 The Client agrees that KJ may amend these Terms and Conditions at any time. If KJ makes a change to these Terms and Conditions, then that change will take effect from the date on which KJ notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for KJ to provide any Works to the Client.
22.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.
23. PERSONAL GUARANTEE
23.1 In consideration of KJ performing Works for the Client, the Guarantor agrees to jointly and severally guarantee to KJ the due and punctual payment of all moneys and the due and punctual performance and observance by the Client of all the covenants, conditions and provisions in these Terms and Conditions to be paid, performed and observed by the Client (the “Guarantee”).
23.2 The Guarantor covenants with the Client that the Guarantee shall be a continuing guarantee and that the liability of the Guarantor shall continue until each and every obligation of the Client under these Terms and Conditions is duly performed and completed and the liability of the Guarantor shall not be abrogated, altered, prejudiced or affected by any neglect or forbearance by KJ or by the granting by KJ to the Client of time or by any other forbearance, act or thing permitted or omitted.
23.3 The Guarantor further covenants with KJ to hold KJ indemnified against all losses, damages, expenses and costs on an indemnity basis which KJ may incur by reason of any breach or default on the part of the Client under the covenants and obligations on the part of the Client to be observed and performed in these Terms and Conditions.
23.4 If the Client does not make payment of any amount due to KJ, KJ can demand that amount be immediately paid from the Guarantor.
23.5 If the Guarantor does not make payment of an amount when demanded by KJ then KJ, among other things and in any order KJ so chooses:
a) can sue the Guarantor for the full amount owing; and
b) can enforce any other security available to KJ.
23.6 The Guarantor undertakes to pay any enforcement expenses of KJ however incurred, including legal expenses on an indemnity basis, in relation to the enforcement of this guarantee.