THE PARTIES AGREE:

1.  DEFINITIONS

• In this Agreement unless inconsistent with the context or subject matter:
  • “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
  • "Agreement" means any Purchase Order, the Credit Application (if any) and these Terms and Conditions of Trade;
  • "Claim" means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity);
  • "Client" means the client or customer identified in the Credit Application (if any) or if there is no Credit Application then the client or customer named a Purchase Order or who submits the Purchase Order;
  • "Client's Address for Service" means the email address of the Client set out in the Credit Application or Purchase Order;
  • “Corporations Act” means the Corporations Act 2009 (Cth);
  • “Credit Application” means any application for credit submitted by the Client to the Supplier in the form required by the Supplier;
  • "Credit Provider" has the meaning given in section 6G of the Privacy Act 1988 (Cth);
  • “Deposit” means the deposit stated in any Purchase Order;
  • "Force Majeure" means an act, omission or circumstance over which the Supplier could not reasonably have exercised control including a lack of materials;
  • “Goods” means any goods (such as steel) supplied by the Supplier to the Client from time to time;
  • "GST" has the meaning given to it in the GST Act;
  • "GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
  • “Guarantor” means the guarantor, if any, named in the Credit Application (or if there is no Credit Application then otherwise in the Purchase Order);
  • “Insolvency Event” means:
    1. a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
    2. a liquidator or provisional liquidator is appointed in respect of a person;

• any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph i) or ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;

1. any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
2. any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs i) to iv) of this definition (inclusive); or
3. a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts;

• "Loss" includes (without limitation) the following, whether direct or indirect, special or consequential in nature:
  1. loss, damage, costs (including legal costs on a solicitor and own client basis), action or expense of any kind; and
  2. to the extent not covered in the preceding subclause, loss of profits, opportunity, use, revenue, goodwill, bargain, production, sales turnover, income, reputation (or damage to it), employment, corruption or destruction of data, customers, loss relating to or in connection with any other contract, business or anticipated savings, reduction in value, any delay or financing costs or increase in operating costs, or any other financial or economic loss; and

• anything referred to in the preceding subclauses relating to or arising out of or in connection with:
  1. personal injury (including death or disease) to the Client;
  2. personal injury (including death or disease) to any third party; or
  3. loss of or damage to the property of the Supplier, the Client or any third party; and
  4. a breach or non-compliance by the Supplier or the Client with any law;
• “Personnel” means the directors, officers, employees, contractors, suppliers, advisers or agents of a party (and in the case of the Client, includes without limitation any builder or carpenter or other trade person engaged by them and any of their Personnel);
• “Plans” means any structural or other plans, specifications and documents provided by the Client (or its Personnel) to the Supplier;
• "PPSA" means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;
• "PPS Register" means the Personal Property Securities Register established under the PPSA;
• “Purchase Order” means a request for Goods placed by the Client under clause 3 with the Supplier and which is accepted by the Supplier in accordance with this Agreement (including any quotation/invoice provided by the Supplier to the Client);
• "Services" means any services supplied by the Supplier to the Client, from time to time and includes without limitation the fabrication and supply of the Goods (and the Goods themselves);
• “Site” means any site at which the Goods are to be delivered to by the Supplier;
• "Supplier" means P & D Imports Pty Ltd ABN 60 645 653 050 trading as RHS Steel Supplies;
• "Supplier's Address for Service" means This email address is being protected from spambots. You need JavaScript enabled to view it.;
• “State” means New South Wales; and
• "Tax Invoice" has the same meaning as in the GST Act.

• In this Agreement unless inconsistent with the context or subject matter:
  • References to a party to any agreement or document include that party's permitted assignees and successors, including executors and administrators and legal representatives.
  • Words denoting the singular include the plural and words denoting the plural include the singular.
  • Words denoting any gender include all genders.
  • The word 'person' includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
  • Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
  • Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
  • No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.
  • If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
  • A reference to time is a reference to time in the capital city of the State.
  • A reference to a day is a reference to a day in the capital city of the State.
  • A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
  • If any act is required to be performed under this Agreement on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
  • A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
  • Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
  • A reference to writing or written includes email.
  • Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2. Provision of Services

• This Agreement will become binding on the Client, Guarantor/s and Supplier on the earlier of the date that the Supplier notifies the Client that its Credit Application (if any) has been accepted or otherwise the Supplier provides the Client with a copy of the Credit Application signed by the Supplier, or when the Supplier otherwise commences provision of the Services, accepts a Purchase Order or issues the Client with a Tax Invoice.
• The Supplier and the Client agree that the Supplier will provide the Services to the Client on the terms and conditions contained in this Agreement.
• The Client may request the Supplier provide Services either through writing, verbally, SMS text message or any other method accepted by the Supplier (including by responding to a quote provided by the Supplier). The Supplier may subsequently issue a quotation or invoice (or otherwise the fee for the Services will be as per the Supplier’s price list).
• The Supplier may accept or reject a Purchase Order in its discretion. Any accepted Purchase Orders shall form part of, and be governed by, the terms of this Agreement. Any quotation/invoice provided by the Supplier to the Client forms part of the Purchase Order.
• In the event of any inconsistency between this Agreement and any Purchase Order, the terms contained in the Purchase Order will prevail to the extent of such inconsistency. No terms supplied by the Client will form part of this Agreement or any Purchase Order.
• Purchase Orders cannot be cancelled except as provided for in this Agreement.
• The Supplier may subcontract, delegate or perform the Services through any person without the prior written consent of the Client.

3. Pricing

• The fees payable by the Client to the Supplier for the Services are:
  • (where a quote is provided) as quoted; and/or
  • (where no quote is provided) calculated on the basis of the Supplier’s current price list at the time the Purchase Order is accepted by the Supplier (unless otherwise agreed).
• The Supplier reserves the right to vary the fees payable following the issue of a quote however prior to full payment in the event of increases to the Supplier’s cost of labour or materials, or fluctuations in currency exchange rates, which are beyond the Supplier’s control.
• The Client must pay all delivery costs of the Goods to the Site.
• All fees are quoted based on the Plans.
• Quotes are valid for 14 days.
• This Agreement applies to all invoices and quotes issued by the Supplier unless otherwise agreed by the parties in writing.

4. PAYMENT

• Unless otherwise agreed in a Purchase Order:
  • the Deposit/first payment and the second payment is payable by the Client to the Supplier prior to the Supplier ordering and fabricating the Goods; and
  • the balance of the fees are payable within 30 days of the date of delivery.
• The Supplier will issue a Tax Invoice for the fees for Services to the Client and the Client will pay the Supplier the amount stated on the Tax Invoice for the Services within 30 days of the date of the invoice (however the Client acknowledges that the Supplier will not order or fabricate the Goods until payment is received in accordance with clause 1).
• All payments must be made by electronic funds transfer to the Supplier’s nominated bank account or by credit card over the phone. All fees are non-refundable to the extent permitted by law.
• The Client will also pay to the Supplier, on demand, on a full indemnity basis, all amounts that the Supplier may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis and any debt collection agency costs/commissions) as a result of the Client defaulting on any of the terms of this Agreement.
• If payment is not made in accordance with clauses 1 to 4.3, the Supplier may (without limitation to its other rights):
  • require the Client to pay the Supplier interest on all outstanding monies from the due date until the date of payment at the rate of 12% per annum accruing daily;
  • demand payment and all money payable under this Agreement or any Purchase Order to the Supplier shall immediately become due and payable;
  • suspend the Client’s account with the Supplier and refuse to supply any further part of the Services to the Client until all outstanding monies, including any accrued interest, is paid in full; or
  • terminate this Agreement whereupon the full price for the Services then supplied, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.
• The Client may not withhold payment or make any deduction from any amount owing without the Supplier's prior written consent, irrespective of any claim the Client may have against the Supplier for any thing or matter whether related to the provision of the Services or not.

5.  Variations

• The scope of the Services being provided will be as agreed upon in the Purchase Order and all fees quoted or calculated hereunder are based on the Plans.
• If the Supplier determines that additional Services are required to be carried out, or if for any reason there is a defect or error in the Plans (or the Services requested by the Client which formed the basis for the Purchase Order are incorrect or not ultimately suitable such as where there is an error in the Plans), then the Supplier reserves the right to increase the fees payable for the Services by providing the Client with written notice and such increases in the fees are payable immediately on demand by the Supplier (unless otherwise agreed by the Supplier).
• The Client is solely liable for the payment of any additional Services outside of the scope as agreed upon in the Purchase Order.

6.  Right to refuse further credit or impose credit limit

• The Supplier may at any time, for any reason whatsoever (at its discretion):
  • refuse further credit to the Client; or
  • impose a credit limit (Credit Limit) or vary such Credit Limit of the Client to increase or decrease the Credit Limit,

without any liability to the Client whatsoever. 

• Where a Credit Limit has been imposed by the Supplier:
  • the Supplier is not obliged to perform any Services for the Client once the Credit Limit has been reached;
  • the Supplier may, at its option, perform further Services for the Client, where to do so will result in the Credit Limit being exceeded and the Client agrees that the Supplier is expressly authorised to provide those Services and this Agreement will continue to apply in full to all monies owing; and
  • the Supplier is under no obligation to advise the Client when the Credit Limit has been reached or exceeded.

7.  Title to the Goods

• Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that until such time as the Supplier receives all payments due by the Client under this Agreement, the Supplier retains full title to the Goods and title will not at any time pass to the Client notwithstanding:
  • the delivery or collection of the Goods to/by the Client (as the case may be);
  • installation in or attachment of the Goods to the Client's property; and/or
  • the possession and use of the Goods by the Client.
• The Client acknowledges and agrees that:
  • it will, if requested by the Supplier, return the Goods to the Supplier following non-fulfilment of any obligation of the Client (including payment of monies) without limiting any other right the Supplier may have;
  • it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Goods without the express written consent of the Supplier; and
  • it will deliver up Goods to the Supplier upon demand by the Supplier and give the Supplier or its agents or authorised representatives the right to enter any premises occupied by the Client and any premises where it believes any Goods may be stored such as the Site (without liability for trespass or any resulting damage) and to use the name of the Client and to act on its behalf, if necessary, to recover possession of the Goods and agrees to indemnify the Supplier and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Goods from the Client’s possession or control;
  • it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Goods on trust for and as agent for the Supplier immediately when they are receivable or are received; and
  • the Supplier may recover as a debt due and immediately payable by the Client all amounts owing by the Client to the Supplier in any respect even though title to the Goods has not passed to the Client.

8. Delivery of goods

• The Client is solely responsible for collecting or arranging delivery of the Goods from the Supplier’s premises once they are ready, unless otherwise agreed by the Supplier in writing. In the event that the Supplier agrees to deliver the Goods to the Site, the Client must pay the Supplier all costs associated with such delivery and must ensure that the Goods are insured during delivery from the time that they leave the Supplier’s site.
• Delivery of the Goods shall take place at the earlier of when:
  • the Client or its Personnel or any delivery agent/carrier takes possession of the Goods at the Supplier's address; or
  • the Client or its Personnel or delivery agent/carrier takes possession of the Goods at the Site (in the event that the Goods are delivered to the Client).
• Delivery of the Goods to the Site nominated by the Client is deemed to be delivery to the Client for the purposes of this Agreement. The Supplier will not be responsible for any lost or stolen Goods in the event that they are delivered to the Site (regardless of whether the Client or its Personnel were available to collect it).

9. Return of the goods

• The Supplier may in its discretion permit the Client to return the Goods in exchange for a refund or credit (however the Supplier is not obliged to permit this. If the Supplier permits this, the Client must pay to the Supplier a restocking fee equal to the greater of 10% of the price paid for the Goods or $100, and the Client is solely responsible for all delivery costs and insurance.
• Returns pursuant to this clause will be subject to any other terms specified by the Supplier, and any returned Goods must be in their original condition and packaging, free from damage.

10. PERSONAL PROPERTY SECURITIES

• The Client acknowledges and agrees that notwithstanding any other provision of this Agreement:
  • the PPSA applies to any performance of Services of any kind and the supply of Goods by the Supplier to the Client;
  • the Goods are used by the Client only for commercial purposes and are not used by the Client for personal, domestic or household purposes;
  • the Goods the Client is receiving from the Supplier are not to be used as inventory;
  • by agreeing to and/or accepting or adopting this Agreement the Client grants to the Supplier:
    1. a purchase money security interest in the Goods; and
    2. a security interest over all present and after-acquired property of the Client ("Client's Property"),

to secure the Supplier's interest in the Goods and all moneys owing or payable by the Client under this Agreement and any other monies payable by the Client to the Supplier from time to time on any account whatsoever.

• if a purchase money security interest is not able to be claimed by the Supplier in respect of the Goods for any reason, the Supplier will have a security interest in the Goods as the case may be;
• the Client agrees that the Supplier's security interest in the Goods and the Client's Property covered by this Agreement may be registered on the PPS Register and the Client agrees to do all things necessary and required by the Supplier to effect registration of the Supplier's security interest on the PPS Register in order to give the Supplier's security interest the best priority possible and anything else the Supplier requests the Client to do in connection with the PPSA without delay;
• the Client warrants that all information provided by the Client to the Supplier, including but not limited to the Client’s details, including the entity, name, ACN or ABN and address set out in the Credit Application (if any) or any Purchase Order is correct in all respects and must not change its name, address or other details set out in the Credit Application (if any) or any Purchase Order without providing the Supplier with at least 20 business days prior written notice;
• the Client unconditionally and irrevocably appoints the Supplier as its attorney to do any of acts and matters set out in this clause 9 in the event that the Client fails, delays or declines to execute such documents or do such acts;
• the Client agrees that it will not grant a security interest or other encumbrance in the Goods whether under the PPSA or any other law to a third party unless it has obtained the prior written consent of the Supplier, which the Supplier may refuse to provide or grant in its absolute and unfettered discretion. The Supplier may request, and the Client must provide any information that the Supplier requires, acting reasonably, in order to fully consider whether to grant its consent;
• the Supplier's security interest in the Goods and the Client's Property extends to any proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Goods and/or the Client's Property by the Client;
• it has received value as at the date of provision of the Services and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to the Supplier under this Agreement;
• the Goods are located in Australia at the date of the supply of the Goods and the Client warrants that the Goods will remain located in Australia for the duration of the Agreement;
• neither the Supplier or the Client will disclose any information to any interested person unless required to do so under the PPSA;
• the Client waives its right under the PPSA:
  1. to receive a copy of any verification statement, financing change statement, or any notice that the Supplier intends to sell the Client's Property or to retain the Client's Property on enforcement of the security interest granted to the Supplier under this Agreement or any other notice under the PPSA unless the notice is required to be given by the PPSA and cannot be contracted out of;
  2. to object to a proposal by the Supplier to dispose of or purchase or retain the Goods and/or the Client's Property in satisfaction of any obligation owed by the Client to the Supplier;

• to receive a statement of account following the sale of the Client's Property; or

1. to redeem the Client's Property;

• will not give (or allow any person to give) to the Supplier a written demand requiring the Supplier to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the PPS Register a financing change statement under the PPSA; and
• a default under any other security agreement under which it has granted a security interest to any other party in respect of the Goods is deemed to be a breach of this Agreement.

• The parties agree that the Supplier is not required to respond to a request made under Section 275 of the PPSA and that neither party will disclose information of the kind set out in Section 275(1) of the PPSA.
• Further Supplies/Services

The parties acknowledge and agree that any supply of Goods, or performance of Services of any kind by the Supplier to the Client which is not specifically set out in the Credit Application (if any) or any Purchase Order, but for which the Supplier has or later issues a Tax Invoice or any other documentation to the Client is deemed to form part of the Agreement and is subject to the terms of the Agreement.

• Enforcement
  • The enforcement provisions contained in this Agreement are in addition to any rights available to the Supplier under the PPSA and apply to the maximum extent permitted by law.
  • Without limitation to clause 4(a) and any other provision of this Agreement section 125, 129(2), 142 and 143 of the PPSA are contracted out of.
• Power of Attorney

The Client irrevocably nominates constitutes and appoints the Supplier and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Client on behalf of and in the name of the Client to do all things necessary and sign all such documents as may be necessary to deal with the Goods in accordance with the enforcement provisions of this Agreement, the PPSA or otherwise, if the Client is in default of this Agreement.

• Interpretation

A term used in this clause 9 is taken to have the meaning defined under the PPSA.

11.  Performance of Services

• The provision of Services by the Supplier to the Client will take place at a time agreed between the Supplier and the Client. 
• The provision of Services to a third party nominated by the Client shall be deemed to be provision of the Services to the Client for the purpose of this Agreement. 
• Any times provided by the Supplier to the Client in respect of the provision of the Services are estimates only and are non-binding on the Supplier. Whilst the Supplier attempts to provide all Services at the agreed times, sometimes delays are inevitable and the Supplier will not be responsible for any Losses suffered by the Client in the event of delay.
• The Services will be provided in accordance with the Plans. In the event that the Plans are defective, the Supplier will not be liable to the Client for any Loss that they suffer and the Client will still be liable to pay the entirety of the fees for the entirety of the Services to the Supplier even if the Supplier is unable to properly or fully provide the Services (such as where the Goods do not fit within their designated space so they cannot be installed). The Client acknowledges that upon a Purchase Order being accepted, the Supplier allocates resources and time to the fulfillment of that Purchase Order.
• The Client’s and Guarantor’s personal information will be handled in accordance with the Supplier’s Privacy Policy.

12.  Defective services

• The Client must provide written notice of any defective Services as soon as possible upon becoming aware of them and being no later than 7 days after delivery or collection of the Goods. The Supplier may also require the Client to provide evidence of any defect in any Services supplied.
• The Supplier will decide in its sole discretion if the Services are defective (acting reasonably).
• Except as required by law, for each Service that is deemed defective in accordance with this clause, the Supplier's liability will be limited to the rectification of the defect, supplying of the relevant Services again or the payment of the cost of having the relevant Services supplied again (to remedy such defect) and such replacement Services will not be carried out until the Client's account is paid in full. If any works are required outside the 7-day period, it will be deemed a new scope and a new Purchase Order will be agreed between the parties.
• Notwithstanding any other clause in this Agreement, the Supplier will only be responsible for defects in the Services that the Supplier supplies. To the extent permitted by law the Supplier will not be liable for or required to provide any remedy for:
  • any services carried out by third parties;
  • any defect or damage where such defect or damage is caused by or arises as a result of the Client (or the Client fails to take reasonable steps to prevent them from becoming defective), fair wear and tear, or any accident or circumstance outside the reasonable control of the Supplier (including Force Majeure).

13.  Warranties

• The warranties contained in clause 2 are additional to warranties implied by law. Each of the warranties will be read and construed as a separate and independent warranty and will not be limited by reference to each other. All warranties will be valid at all times during the term of the Agreement and will be continuing warranties which will survive the termination or expiration of this Agreement.
• The Client warrants to the Supplier that as at the date of this Agreement and for the duration of this Agreement:
  • the Plans are true and correct and do not contain errors or defects and contain all information that any reasonable person in the Supplier’s position would need to know in order to quote and supply the Services;
  • the provision of the Services in reliance on the Plans will not infringe the rights of any third party or result in any liability for the Supplier;
  • the information contained in this Agreement is true and correct and it has disclosed all relevant information to the Supplier to assess the credit-worthiness of the Client;
  • it has the legal right and power to enter into this Agreement;
  • the execution, delivery and performance of this Agreement by the Client has been duly and validly authorised by all necessary corporate action on its part;
  • this Agreement is a valid and binding Agreement on the Client, enforceable in accordance with its terms;
  • the Client is not suffering an Insolvency Event and no Insolvency Event is imminent; and
  • it has the capacity to make the payment in accordance with this Agreement.

14. Indemnity and Release

• Except as provided under this Agreement and to the extent permitted by law the Client releases the Supplier and its officers, employees and agents from any and all Claims by the Client or any of its officers, employees, agents or invitees, except to the extent (if any that) the Loss the subject of the Claim is caused by the fraudulent act or omission of the Supplier.
• The Client indemnifies the Supplier against any Losses suffered or incurred by the Supplier arising out of or in connection with:
  • any Claim made against the Supplier by a third party arising out of or in connection with the provision of the Services and/or this Agreement;
  • any Claim made against the Client by a third party arising out of or in connection with the provision of the Services and/or this Agreement;
  • any breach of this Agreement by the Client, including any failure to pay any fees on time;
  • any event or cause, beyond the control of the Supplier including a Force Majeure;
  • any reliance by the Client or a third party on the Services or any advice, information or deliverable provided in connection with the provision of the Services and/or this Agreement;
  • the enforcement of this Agreement; and
  • any negligent act, omission or wilful misconduct of the Client or its Personnel.
• The Client must make payments under this clause:
  • in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
  • in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.

15.  Exclusion and limitation of liability

• The Supplier provides the Services on an "as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. the Supplier excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in this Agreement to the maximum extent permitted by law. The Client relies on the Services at its own risk.
• Without limiting the generality of clause 1, the Supplier expressly excludes any liability in contract, tort or otherwise for any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:
  • any act or omission of the Client or its Personnel, including any delay caused by the Client or its Personnel;
  • any problem caused by misuse, abuse, wear and tear or abnormal movement; and
  • any defect in, or problem caused by, materials or goods supplied by the Client or its Personnel.
• Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Supplier in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
• Subject to the other terms of this clause, the Supplier's maximum aggregate liability to the Client in any 12-month period for any loss or damage or injury arising out of or in connection with the supply of services under this Agreement, including any breach by the Supplier of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to repairing the relevant defect, or the costs of the resupply of the relevant Services to which the liability relates or the payment of the costs of resupply of the relevant Services.
• If the Supplier is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, or is otherwise liable for any matter that cannot be excluded, the Supplier’s total liability to the Client for that failure is limited to, at the option of the Supplier the costs of the resupply of the relevant Services to which the liability relates or the payment of the costs of resupply of the relevant Services.
• Without limitation to the other terms of this Agreement, the Supplier excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.

16. Termination

• The Supplier may in its absolute discretion, by written notice to the Client, immediately terminate this Agreement or one or more Purchase Orders (and shall have no liability for any Loss suffered by the Client due to the termination):
  • if the Client fails to make payment of any amount due under this Agreement on time or otherwise in accordance with this Agreement;
  • if the Client suffers an Insolvency Event;
  • in the event of Force Majeure (such as if there are issues with the weather and the Supplier is unable to supply the agreed Services or the Supplier is unable to obtain materials); or
  • if the Client breaches this Agreement or a Purchase Order and fails to rectify the breach within 7 days of being given a notice to do so.
• The Client may terminate this Agreement if the Supplier breaches the terms of this Agreement and fails to rectify the breach within 14 days of being given a notice to do so. The Client may not otherwise terminate this Agreement.
• The Client may terminate an individual Purchase Order if the Supplier breaches the terms of that Purchase Order and fails to rectify the breach within 14 days of being given a notice to do so. The Client may not otherwise terminate a Purchase Order.
• Upon termination of this Agreement, all existing Purchase Orders shall automatically terminate. The Client shall be liable to pay to the Supplier for all Services supplied by the Supplier under such Purchase Orders up until the date of termination, and such amounts shall be a debt immediately due and owing.
• The termination of a Purchase Order does not affect any other Purchase Order/s which shall continue. Upon termination of a Purchase Order the Client shall be liable to pay to the Supplier for all Services supplied by the Supplier under that Purchase Order up until the date of termination, and such amounts shall be a debt immediately due and owing.
• The rights and remedies of the parties contained in this clause 15 are in addition to any other rights and remedies by law, in equity or under this Agreement.

17.  Risk

• Even if the Supplier retains ownership of the Goods, all risk for the Goods passes to the Client on delivery of the Goods in accordance with clause 2.
• If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Supplier is entitled to:
  • receive payment for the Goods; and
  • receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions of Trade by the Supplier is sufficient evidence of  the Supplier's rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.

18.  No assignment

• The Client must not transfer or assign its rights under this Agreement to anyone else, without the prior written consent of the Supplier, which may be granted or withheld by the Supplier in its sole, absolute and unfettered discretion. The Client must provide any information the Supplier requires to consider whether to grant its consent.
• Any change in 50% or more of the shareholding of the Client will constitute a deemed assignment which requires the Supplier's prior written consent in accordance with clause 1.
• The Client acknowledges and agrees that the Supplier may transfer, assign or otherwise dispose of its interest in this Agreement upon giving written notice to the Client.

19. Notices

• All notices authorised or required under this Agreement to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party's Address for Service or as the case may be at such other address as a party may from time to time notify to the other.
• The following shall constitute proof of receipt:
  • proof by posting by registered post; or
  • proof of dispatch by email.
• Receipt of a notice given under this Agreement will be deemed to occur:
  • in the case of a communication sent by pre-paid registered post, on the third business day after posting;
  • in the case of an email, on the business day immediately following the day of dispatch.
• If a notice is sent via post, it must also be sent via email.

20. GENERAL

• Variation

An amendment or variation of any term of this Agreement must be in writing and signed by each party.

• No Waiver
  • No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
  • Words or conduct referred to in clause 2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
• Counterparts

This Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this Agreement by signing any counterpart. The date on which the last counterpart is executed is the date of this Agreement. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.

• Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.

• Severability
  • If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
  • Clause 5(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under this Agreement.
• No Merger

On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.

• Survival

Any clause which by its nature is intended to survive termination or expiry of this Agreement will survive such termination or expiry.

• Further Action

Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.

• Time of the Essence

Time is of the essence in this Agreement in respect of any date or time period and any obligation to pay money.

• Relationship of the Parties

Nothing in this Agreement gives a party authority to bind any other party in any way. Nothing in this Agreement imposes any fiduciary duties on a party in relation to any other party.

• Remedies Cumulative

Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.

• Entire Agreement

This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

• No Reliance

No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in this Agreement.

• Governing Law and Jurisdiction

This Agreement is governed by the law in force in the State. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.

• Dispute Resolution
  • If a dispute arises in connection with this Agreement then a party may only deal with that dispute in the manner set out in this clause.
  • A party to a dispute which arises in connection with this Agreement may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.
  • Within 7 days after a notice is given under the above clause (or such longer period as is agreed in writing by the parties to the dispute) each party to the dispute must use its best efforts to resolve the dispute in good faith.
  • If despite the parties' best efforts a dispute not resolved within 7 days after notice a party may by notice to the other party or parties to the dispute refer the dispute for mediation in accordance with the Resolution Institute Mediation Rules. The mediation will be conducted by a mediator to be appointed by agreement of the parties or, if the parties are unable to agree on a mediator within 7 days of a party making a written nomination to the other party, to be appointed by the Chair (or his or her designated representative) of Resolution Institute (ACN 008 651 232) at the request of a party.
  • If the dispute is not resolved within 30 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
  • The provisions of this clause do not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a Court which may be urgently required.

21. Guarantee and indemnity

• In consideration of the Supplier, at the request of the Guarantor, entering into this Agreement with the Client, the Guarantor covenants and agrees with the Supplier that:
  • Notwithstanding that as between the Guarantor and the Client the Guarantor may be a surety only, as between the Guarantor and the Supplier the Guarantor is a principal debtor.
  • The Guarantor will be liable jointly and severally with the Client (and with each other Guarantor if there is more than one Guarantor) for the due and punctual payment of all moneys to be paid by the Client under this Agreement and for the due performance and observance by the Client of this Agreement and such liability will not be reduced or affected by the death, Insolvency Event or dissolution of the Client or the Guarantor or any of them.
  • The Guarantor indemnifies the Supplier from and against all Loss, damage costs (including all costs payable by the Supplier to a solicitor on a solicitor and own client basis) and expenses which the Supplier may suffer or incur in consequence of any breach or non-observance of this Agreement by the Client and the Guarantor agrees that the Guarantor will remain liable to the Supplier under this indemnity notwithstanding as a consequence of any breach or non-observance the Supplier has exercised any of its rights under this Agreement.
  • On any default or failure by the Client to observe and perform any of this Agreement the Guarantor will immediately (without the need for any demand to be made) pay all moneys and make good to the Supplier all damages costs (including all costs payable by the Supplier to a solicitor on a solicitor and own client basis) and expenses sustained or incurred by the Supplier by reason of or in consequence of any breach or non-observance of this Agreement by the Client and the Guarantor will also pay to the Supplier interest at the rate of 12% per annum accrued daily from the due date for payment until the date of payment (except on interest as specified under this Agreement).
  • The liability of the Guarantor under this guarantee and indemnity will not be affected by the granting of time or any other indulgence to the Client or by any compromise abandonment waiver variation or by any other thing which under the law relating to sureties would or might but for this provision release the Guarantor in whole or in part from its obligations under this guarantee and indemnity.
  • To the fullest extent permitted by law the Guarantor hereby waives such of its rights as surety or indemnifier (legal equitable statutory or otherwise) as may at any time be inconsistent with any of the provisions of this guarantee and indemnity.
  • The Guarantor hereby:
    1. charges all of its legal and beneficial interest in all of its property, including but not limited to its real property and personal property (as that term is defined in the PPSA), including property acquired after the date of this Agreement, in favour of the Supplier, whether or not demand has been made on the Client by the Supplier;
    2. agrees to execute all documents and do all things necessary, upon request by the Supplier, to register the Supplier's interest in the Guarantor’s property as granted by this clause 20, whether by a mortgage over the Guarantor’s real property or by registration of a security interest on the PPS Register or otherwise;

• irrevocably appoints the Supplier and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Guarantor on behalf of and in the name of the Guarantor to do all things necessary to register the Supplier's security over the Guarantor’s property granted by this clause 20.

• If the charges created by sub-clause 1(g)i) are or become void or unenforceable, sub-clause 20.1(g)i) may be severed from this  Agreement and  the Agreement shall continue in full force and effect and the severance shall not effect on its validity and the Guarantor will not be released from its obligations in whole or in part and the Supplier's rights and remedies against the Guarantor shall not be effected by such severance.
• The enforceability of this guarantee and indemnity against the Guarantor is not conditional, contingent or dependent in any way upon the validity or enforceability of this guarantee and indemnity against any other person or execution of this contract or this guarantee and indemnity by any other person.
• The Guarantor does not execute this Agreement as a result of or by reason of any promise representation statement information or inducement of any nature or kind given or offered to the Guarantor by the Supplier or on the Supplier's behalf whether in answer to any enquiry by or on behalf of the Guarantor or not and the Supplier was not prior to the execution of this guarantee and indemnity by the Guarantor, and is not subsequently, under any duty to disclose to the Guarantor or to do or execute any act matter or thing relating to the affairs of the Client or its transactions with the Supplier.
• In the event of the invalidity of any part or provision of this guarantee and indemnity that invalidity will not affect the validity or the enforceability of any other part or provision of this guarantee and indemnity. If a provision of this guarantee and indemnity is void or unenforceable it must be severed from the guarantee and indemnity and the provisions that are not void or unenforceable are unaffected by the severance.
• All notices or demands to be given to, made or served upon the Guarantor will be deemed to be duly given to, made or served on the Guarantor if:
  1. it is signed by any officer, authorised employee, agent or solicitor of the Supplier; and
  2. it is delivered:
     1. to any Guarantor personally; or
     2. left at the last known place of business or abode of any Guarantor; or
     3. if an address is noted in the Credit Application (if any) or Purchase Order, left at or sent to the Guarantor through the post in an ordinary prepaid envelope addressed to that Guarantor at the address. A notice or demand which is posted will be deemed to have been served on the Guarantor on the second business day following the date of posting.

• If there is more than one Guarantor, any notice or demand given to, made or served upon a Guarantor is deemed to be served on each of them.
• The Guarantor agrees that its liability to the Supplier is unlimited notwithstanding that the Supplier supplies the Client with credit in excess of the Credit Limit.