Terms & Conditions

THE PARTIES AGREE:

1. DEFINITIONS

1.1 In this Agreement unless inconsistent with the context or subject matter the following terms have the corresponding definitions:

(a) “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));

(b) “Agreement” means these terms and conditions and any agreed to Quotes.

(d) “Client” the client as specified in a Quote;

(e) “Commencement Date” the date this Agreement become binding on the Client in accordance with clause 2;

(f) “Corporations Act” means the Corporations Act 2001 (Cth);

(g) “Equipment” means any equipment used by the Supplier in the provision of the Services, including any Equipment that is left at the Site in connection with the Services;

(h) "Force Majeure" means an act, omission or circumstance over which the Supplier could not reasonably have exercised control;

(i) “Goods” means any goods supplied by the Supplier to the Client from time to time;

(j) "GST" has the meaning given to it in the GST Act;

(k) "GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(l) “Insolvency Event” means:

i) 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;

ii) a liquidator or provisional liquidator is appointed in respect of a person;

iii) any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i)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;

iv) 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;

v) 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

vi) 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

(m) "Loss" any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);

(n) “Personnel” means the directors, officers, employees, contractors, suppliers, advisers or agents of a party;

(o) “Plans” means any drawings, structural or other plans, specifications, documents, instructions or information provided by the Client (or its Personnel) to the Supplier or otherwise provided by the Supplier to the Client;

(p) "PPSA" means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;

(q) "PPS Register" means the Personal Property Securities Register established under the PPSA;

(r) "Quote" means any quotations provided by the Supplier to the Client;

(s) "Services" means any services supplied by the Supplier to the Client, from time to time and includes without limitation the supply and installation of the Goods (and the Goods themselves);

(t) “Site” means any site at which the Services are to be provided, as set out in a Quote;

(u) “Supplier” means Rapta Equipment Pty Ltd ABN 52 685 868 428;

(v) “State” means Victoria;

(w) "Tax Invoice" has the same meaning as in the GST Act; and

(x) “Term” the term of this Agreement commencing on the Commencement Date and continuing until terminated in accordance with its terms.

1.2 In this Agreement unless inconsistent with the context or subject matter:

(a) References to a party to any agreement or document include that party's permitted assignees and successors, including executors and administrators and legal representatives.

(b) Words denoting the singular include the plural and words denoting the plural include the singular.

(d) The word 'person' includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency.

(e) 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.

(f) 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.

(g) 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.

(h) 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.

(i) A reference to time is a reference to time in the capital city of the State.

(j) A reference to a day is a reference to a day in the capital city of the State.

(k) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.

(l) 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.

(m) 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.

(n) Where this Agreement are 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.

(o) A reference to writing or written includes email.

(p) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2. APPLICATION

2.1 This Agreement, including any Quote, will become binding on the Client on the earlier of the date that a) the Client indicates their acceptance to the terms (such as by accepting a Quote); b) the Client instructs the Supplier to proceed with the supply of any Goods and Services; or c) the Client pays any amount to the Supplier in respect of the Goods and Services.

2.2 This Agreement applies to all Goods supplied by the Supplier and any Services (such as installation of the Goods) provided by the Supplier to the Client at any time following the Commencement Date and will continue until terminated.

2.3 The Client cannot terminate this Agreement except to the extent as expressly permitted by this Agreement.

2.4 Unless otherwise agreed all Quotes are valid until the expiry date as set out in the Quote, and will only become binding on the Supplier when the Supplier expressly acknowledges acceptance. Any fees stated in a Quote are provided on the basis of the information current to the Supplier at the date of the invoice. The Supplier reserves the right to increase the fees where applicable in accordance with the terms of this Agreement.

2.5 The Client acknowledges and agrees that the supply of Goods and Services remains subject to availability and if, for any reason the Supplier is unable to proceed with the supply, the Supplier reserves the right to cancel the Goods and Services (and issue a refund for the cancelled Goods and Services if applicable). This is the Client’s only remedy in these circumstances and the Supplier will not be liable to pay any other amount to the Client.

2.6 No invoice, terms or other document issued by or on behalf of the Client (including the terms on any warranty or other agreement given to the Supplier) will vary or form part of this Agreement unless otherwise agreed by the Supplier in writing. This Agreement replaces and supersedes any invoice, terms or other document given by the Client to the Supplier whether before or after the time that this Agreement is provided to the Client.

3. SUPPLY OF GOODS

3.1 During the Term the Supplier agrees to supply and the Client agrees to purchase the quantities of Goods that the Client orders as set out in an agreed to Quote.

3.2 The Quote may contain additional terms which form part of this Agreement. In the event of any inconsistency between this Agreement and any Quote, the terms contained in the Quote will prevail to the extent of such inconsistency.

3.3 Once a Quote has been agreed to, the Client may not cancel that Quote unless otherwise agreed by the Supplier in writing.

3.4 The Client is solely responsible for ensuring the Goods and requested Services are suitable for the Client’s needs.

4. FEES

4.1 The fees payable by the Client to the Supplier for the Goods supplied and Services undertaken (if applicable) is as specified in a Quote or where no Quote is provided, is an amount determined in accordance with the Supplier’s then current price list (as at the date of the Quote) which is available upon request.

4.2 The Supplier reserves the right to vary the fees payable, even after the Client has accepted a Quote or instructed the Supplier to proceed with the Goods and Services, in the event of:

(a) variations to the Goods and Services requested;

(b) delays in accepting a Quote; and/or

(c) any variation to the Supplier’s cost of labour or materials, or fluctuations in currency exchange rates, inaccurate structural measurements provided by the Client, or where additional Services are required due to unforeseen circumstances which are beyond the Supplier’s control.

4.3 Such variations will be charged for on the basis of the Supplier’s Quote or then current price list as applicable, and will be shown as variations on the invoice.

4.4 Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive of GST and the Client must pay GST on the fees at the same time as payment of the fees is due.

5. PAYMENT

5.1 The Client must pay the fees for the Goods supplied and Services undertaken (as applicable) at the time/s as specified in the Quote. If no time/s are stated or no Quote given, then the following payment schedule will apply:

(a) 50% of the fees are due upfront as a non-refundable deposit;

(b) 50% of the fees are due prior to the earliest of the Goods being dispatched or collected (as applicable) or the date of the installation of the Goods.

The Supplier will provide the Client with a Tax Invoice for the fees in accordance with the payment schedule and that Tax Invoice is payable on the date set out in the invoice.

5.2 At the Supplier’s sole discretion a non-refundable deposit may be required. If a deposit is set out in the Quote, the Client must pay the deposit immediately upon accepting a Quote, and the Client acknowledges that the Supplier will not order the Goods or undertake the installation of the Goods until payment is received.

5.3 Payment may be made by any other method as agreed to between the Supplier and the Client. All fees are non-refundable to the extent permitted by law. Any applicable payment processing fees will be as stated in a Quote.

5.4 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.

5.5 If payment is not made in accordance with this clause 5, the Supplier may (without limitation to its other rights):

(a) 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 10% per annum accruing daily;

(b) demand payment and all money payable under this Agreement or any Quote to the Supplier shall immediately become due and payable;

(c) 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

(d) terminate this Agreement whereupon the full price for the Goods and Services then supplied, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.

5.6 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.

6. INSTALLATION SERVICES AND SITE ACCESS

6.1 If requested, the Supplier agrees to undertake installation of the Goods for the Client at the Site in the manner as set out in the Quote.

6.2 Such Services will take place at the times mutually agreed by the parties.

6.3 The rate for the installation Services is as set out in the Quote. The rates for installation are based on the initial quoting stage and the Supplier reserves the right to vary their rates depending on the complexity of the installation or any variant of the installation. The Supplier will notify the Client if higher rates apply, and if the Client instructs the Supplier to proceed with the installation then the Client is deemed to accept the new rates.

6.4 The Client must ensure that (where required for the Services such as installation works):

(a) the Site is accessible and ready for the installation of the Goods at the time as specified by the Supplier;

(b) the Supplier, its Personnel and their Equipment have full, safe, unobstructed and unfettered access to the Site, as well as full, safe, unobstructed and unfettered access to pass through any other areas for the purpose of providing the Services, at all times during which the Services are being provided;

6.5 In the event that the Client fails to comply with clause 6.4, the Services will be delayed and the Client will pay to the Supplier an amount equal to the standard hourly rate charged out by the Supplier for any Personnel who stand by.

6.6 Where Equipment is required to be left and stored at the Site the Client shall ensure the security and safe keeping of such Equipment. Equipment left at the Site will be at the risk of the Client (however ownership shall at all times remain with the Supplier).

6.7 The Client represents and warrants to the Supplier that:

(a) the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Supplier shall not be liable for any claims, demands, Losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation; and

(b) it has all necessary rights and authorities to grant the Supplier access to the Site, and that by accessing the Site in accordance with this Agreement, the Supplier will not be infringing any third party rights.

6.8 The Supplier shall not be liable for any Loss or damage to the Site unless due to the Supplier’s negligent act or omission or breach of this Agreement.

6.9 The Supplier may subcontract, delegate or perform the Services through any person without the prior written consent of the Client.

6.10 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.

6.11 Although the parties may have agreed on the delivery schedule, the parties acknowledge and agree that any times provided by the Supplier to the Client in respect of the provision of the Services are variable and 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.

7. INSTALLATION TERMS

7.1 Colour/Style of the Goods

When buying any Goods, the Client acknowledges that there will be slight variances in the colour or style of the Goods from the original sample. The Supplier will only be responsible for manufacturing defects or refer the dispute onto the manufacturer of the Goods in the case that there are manufacturing defects.

7.2 Home contents

it is the Client’s responsibility to properly pack and move contents of the Site to a safe place. The Supplier takes no responsibility for any contents of the Site that are damaged or stolen during the installation process.

8. VARIATIONS AND AMENDMENTS

8.1 Subject to the other terms of this clause, either party may propose changes to the scope or execution of the Services but no changes shall come into effect until agreed by both parties. Variations may result in delays and an extension may be required.

8.2 If the Supplier determines that additional Services are required to be carried out, or the Services requested by the Client which formed the basis for the Quote are incorrect or not ultimately suitable, 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).

8.3 Any Services outside of scope will incur additional costs.

9. INSURANCE

9.1 If the Client is operating as a business, then it must obtain and maintain with a reputable insurer for the duration of the Services:

(a) public liability insurance with a minimum indemnity limit of $20,000,000 per occurrence; and

(b) in relation to its Personnel, workers compensation insurance in accordance with this Agreement, the relevant state and territory legislation in which Services are to be provided.

9.2 If requested by the Supplier the Client must provide to the Supplier a copy of the certificate of currency for the insurance policies required to be held by it.

10. INTELLECTUAL PROPERTY

10.1 Where the Supplier has designed, drawn or developed the Plans for the Client (whether alone or with the assistance of the Client), then the Supplier shall retain ownership of such Plans.

10.2 Where the Client has designed, drawn or developed the Plans by itself then the Client shall remain the owner of such Plans, and grants the Supplier the right to use such Plans for the purposes of providing the Services under these Terms.

10.3 The Client warrants that all Plans given to the Supplier will not cause the Supplier to infringe any intellectual property rights or third party rights of any third party and the Client agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.

11. OWNERSHIP, RISK AND ASSESSMENT

11.1 Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that the Supplier retains full title to the Equipment and title will not at any time pass to the Client. The Equipment is to be used solely by the Supplier in providing the Services, and may be collected or inspected by the Supplier at any time. The Client must not, and must ensure that its Personnel do not, touch or use the Equipment.

11.2 Except to the extent caused or contributed to by the Supplier, the Client is solely responsible for any damage that occurs to the Equipment whilst it is on Site or otherwise within the Client’s possession, or any Loss suffered by the Supplier or any third party in connection with that Equipment being left with the Client. The Client indemnifies the Supplier in respect of any Loss suffered by the Supplier in connection with the Equipment being left on the Site or in their possession.

11.3 Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that the Supplier retains full title to the Goods and title will not at any time pass to the Client until the purchase price for the Goods and all other amounts owing in respect of the Goods are paid to the Supplier notwithstanding:

(a) the delivery or collection of the Goods to/by the Client (as the case may be);

(b) installation in or attachment of the Goods to the Client's Site; and/or

11.4 Receipt by the Supplier 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.

11.5 Even if the Supplier retains ownership of the Goods, all risk for the Goods passes to the Client:

(a) on dispatch of the Goods to the Client or the nominee of the Client; or

(b) on collection of the Goods by the Client or the nominee of the Client.

11.6 The Client must insure the Goods on or before delivery. If the Client requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

11.7 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Supplier is entitled to:

(a) receive payment for the Goods; and

(b) for any shortfall of the payment of the Goods, receive the insurance proceeds payable for the Goods (for the amount of the shortfall). The production of this Agreement 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

11.8 The Client acknowledges and agrees that (in the case of the Equipment at all times, and in the case of the Goods prior to ownership passing to the Client):

(a) it will not, and will ensure the Personnel do not, use the Equipment without the Supplier’s consent;

(b) it holds the benefit of the Client’s insurance of the Goods on trust for the Supplier, and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;

(c) 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;

(d) 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 Equipment or Goods without the express written consent of the Supplier; and

(e) it will deliver up the Equipment and 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 Equipment or 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 Equipment or 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 Equipment or Goods from the Client’s possession or control;

(f) 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

(g) 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.

12. DELIVERY OF GOODS

12.1 The delivery of the Goods is to take place in accordance with the delivery instructions as agreed between the parties and documented in the Supplier’s delivery documentation (Delivery Documentation). The Client must ensure that it complies with any delivery instructions agreed upon in the Delivery Documentation (including such requirements set out in the Delivery Documentation for the preparation of the Site.

12.2 The Client must pay all costs associated with the delivery and insurance (during transit) of the Goods as specified in the Quote or as otherwise advised by the Supplier. The Client must make payment of such costs at the same time as payment for the relevant Goods is made or at another time as directed by the Supplier.

12.3 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 or Equipment in the event that they are delivered to the Site (regardless of whether the Client or its Personnel were available to collect it).

12.4 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage. Where this occurs, the Supplier will store the Goods at the risk of the Client until delivery takes place again.

12.5 The Supplier may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions of this Agreement.

12.6 Any timelines for delivery of Goods given by the Supplier to the Client is an estimate only and shall not be binding on the Supplier and subject to change without notice. The Supplier endeavours to provide the Goods on time, however cannot guarantee the Goods will be delivered by such delivery dates. The Client must still accept delivery of the Goods even if late and the Supplier will not be liable for any Loss or damage incurred by the Client as a result of the delivery being late.

13. PERSONAL PROPERTY SECURITIES

13.1 For Clients who are on approved credit terms the terms of this clause will apply.

13.2 The Client acknowledges and agrees that notwithstanding any other provision of this Agreement:

(a) the PPSA applies to any performance of Services of any kind and the supply of Goods by the Supplier to the Client;

(b) the Goods are used by the Client only for commercial purposes and are not used by the Client for personal, domestic or household purposes;

(d) by agreeing to and/or accepting or adopting this Agreement the Client grants to the Supplier:

i) a purchase money security interest in the Goods; and

ii) a purchase money security interest in the Equipment (to the extent the hire or possession by the Client of the Equipment is a PPS Lease); and

iii) 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 Equipment 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;

(e) if a purchase money security interest is not able to be claimed by the Supplier in respect of the Equipment or the Goods for any reason, the Supplier will have a security interest in the Equipment or the Goods as the case may be;

(f) the Client agrees that the Supplier's security interest in Equipment and 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;

(g) 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 Quote is correct in all respects and must not change its name, address or other details set out in the Quote without providing the Supplier with at least 20 business days prior written notice;

(h) the Client unconditionally and irrevocably appoints the Supplier as its attorney to do any of acts and matters set out in this clause 13 in the event that the Client fails, delays or declines to execute such documents or do such acts;

(i) the Client agrees that it will not grant a security interest or other encumbrance in the Equipment or 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;

(j) the Supplier's security interest in the Goods, the Equipment 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, the Equipment and/or the Client's Property by the Client;

(k) 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;

(l) the Goods and the Equipment are located in Australia at the date of the supply of the Goods and Equipment and the Client warrants that the Goods and Equipment will remain located in Australia for the duration of this Agreement;

(m) neither the Supplier nor the Client will disclose any information to any interested person unless required to do so under the PPSA;

(n) the Client waives its right under the PPSA:

i) 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;

ii) to object to a proposal by the Supplier to dispose of or purchase or retain the Goods, the Equipment and/or the Client's Property in satisfaction of any obligation owed by the Client to the Supplier;

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

iv) to redeem the Client's Property;

(o) 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

(p) a default under any other security agreement under which it has granted a security interest to any other party in respect of the Goods or Equipment is deemed to be a breach of this Agreement.

13.3 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.

13.4 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 Quote 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 this Agreement and is subject to the terms of this Agreement.

13.5 Enforcement

(a) 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.

(b) Without limitation to clause 13.5(a) and any other provision of this Agreement section 125, 129(2), 142 and 143 of the PPSA are contracted out of.

13.6 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 and the Equipment in accordance with the enforcement provisions of this Agreement, the PPSA or otherwise, if the Client is in default of this Agreement.

13.7 Interpretation

A term used in this clause 13 is taken to have the meaning defined under the PPSA.

14. LIMITED WORKMANSHIP WARRANTY

14.1 The Supplier warrants that the labour component of the Services carried out by the Supplier will be free of any defects for a limited period of 12 months from the date that all applicable fees for the Services have been paid in full in cleared funds.

14.2 In order to claim pursuant to this warranty in the period of 12 months from the date that all applicable fees for the Services have been paid in full in cleared funds, the Client must comply with the terms of clause 16.

14.3 This limited express warranty is in addition to any rights the Client may have under the ACL.

15. LIMITED GOODS WARRANTY

15.1 Subject to the other terms of this clause, the Supplier warrants that the Goods will be free from manufacturing defects for the duration of the manufacturer’s warranty period as set out in the Quote or otherwise notified to the Client.

15.2 In order to claim pursuant to this warranty the Client must comply with the manufacturer’s process and terms set out in any warranty documentation provided and clause 16, and otherwise not breach any other provision of this Agreement.

15.3 This limited express warranty is in addition to any rights the Client may have under the ACL.

16. ACCEPTANCE AND DEFECTIVE GOODS AND SERVICES

(a) The Client must inspect all Services immediately on installation and before use. The Client may reject as defective any Services that do not comply with the terms of clause 15 provided that the Client gives the Supplier notice of the rejection:

i) in the case of a defect that is apparent on normal visual inspection, within 7 days of the Services being carried out; or

ii) in the case of a latent defect, within 7 days of the latent defect becoming apparent and within the warranty period as set out in clause 14 (as it relates to the labour component) and clause 15 (as it relates to the Goods).

(b) The Client is deemed to have accepted the Services if the Client fails to give notice of rejection in accordance with this clause 16.

i) provide any photographic evidence requested by the Supplier; and

ii) allow the Supplier to inspect the Services to determine whether they are defective.

(d) Where the Supplier attends to check or repair a Service, and the Supplier deems that Service not defective, or otherwise not covered by this warranty, the Supplier may charge the Client a call out fee as specified by the Supplier (based on its current rates) for having one of its Personnel attend the site.

(e) If the Supplier is notified of defective Services and agrees it is defective (acting reasonably) then the Supplier will at its election either:

i) replace the defective Services; or

ii) repair the defective Services (as applicable),

unless a full refund is required by law.

(f) Subject to the terms of this clause, Services will only be dealt with in accordance with this clause provided that:

i) the Client has complied with the other terms of this clause; and

ii) the Supplier has agreed (in its reasonably opinion) that the Services are defective.

(g) Notwithstanding the above clauses, the Supplier will not be liable for and this warranty will not apply for any defect or damage in the Services in any of the following events:

i) where such defect or damage is caused or partly 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;

ii) where the Client makes any further use of the Goods after giving notice of the defect;

iii) the Client dismantles, modifies, alters or repairs those Goods without the written consent of the Supplier;

iv) the Supplier following any instructions supplied by the Client;

v) misuse, abuse, wilful damage, negligence, or abnormal storage or working conditions, fair wear and tear or normal deterioration;

vi) any event, accident or circumstance outside the reasonable control of the Supplier; or

vii) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

(h) Once the Supplier has complied with this clause, the Supplier is not liable to the Client and the Client has no further remedy arising out of or in connection with the rejected Goods.

(i) This limited express warranty is in addition to any rights the Client may have under the ACL.

16.2 Australian Consumer Law

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

(a) to cancel your service contract with us; and

(b) to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

16.3 Exclusion of liability

Notwithstanding any other clause in this Agreement, the Supplier will only be responsible for defects in the Services, Goods and components that the Supplier supplies. To the extent permitted by law the Supplier will not be liable for or required to provide any remedy for:

(a) any components or materials supplied by the Client;

(b) any services carried out by third parties;

(c) 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.

Any damage and/or defects in the Services, Goods and components that the Supplier supplies caused by third party services (such as maintenance by a third party) will void this warranty. The Client must not attempt to repair any Goods itself except where directed by the Supplier in writing. Any replacement of parts or repairs to the Goods must be authorised by the Supplier and must be performed by the Supplier or a certified third-party. Any unauthorised repairs will deem this warranty void.

17. WARRANTIES

(a) The warranties contained in clause 17(b) 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 this Agreement and will be continuing warranties which will survive the termination or expiration of this Agreement.

(b) The Client warrants to the Supplier that as at the date of this Agreement and for the duration of this Agreement:

i) 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;

ii) it has the legal right and power to enter into this Agreement;

iii) 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;

iv) this Agreement is a valid and binding agreement on the Client, enforceable in accordance with its terms;

v) the Client is not suffering an Insolvency Event and no Insolvency Event is imminent; and

vi) it has the capacity to make the payment in accordance with this Agreement.

18. INDEMNITY

18.1 Except to the extent caused or contributed to by the breach of this Agreement by the Supplier, the Client indemnifies the Supplier against, and holds the Supplier harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Supplier arising out of or in connection with:

(a) the Client’s breach or negligent performance or non-performance of this Agreement, including any failure to pay any fees on time;

(b) any claim made against the Supplier or the Client by a third party arising out of or in connection with:

i) the provision of the Services or this Agreement;

ii) the reliance by the Client or a third party on the Services; or

iii) defective Services,

to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement by, or is attributable to the acts or omissions of, the Client or the Client’s Personnel;

(d) the Client’s violation of any Applicable Law;

(e) any event or cause, beyond the reasonable control of the Supplier;

(f) 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;

(g) the enforcement of this Agreement; and

(h) any act, omission or wilful misconduct of the Client or the Client’s Personnel (including any negligent act or omission).

18.2 The Client must make payments under this clause:

(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and

(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.

18.3 If a payment due from the Client under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Supplier will be entitled to receive from the Client such amounts as will ensure that the net receipt, after tax, to the Supplier in respect of the payment is the same as it would have been were the payment not subject to tax.

18.4 Except where expressly stated to the contrary in this Agreement, the rights of a party under this clause are in addition to any other rights available to that party whether those rights are provided for under this Agreement or by law.

18.5 It is not necessary for the Supplier to incur expense or make payment before enforcing a right of indemnity under this clause.

18.6 The indemnities in this clause:

(a) are continuing obligations of the Client, independent from its other obligations under this Agreement and survive termination or expiry of this Agreement; and

(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Client.

18.7 The Supplier’s liability under this indemnity is limited under clause 20.

19. DISCLAIMER

19.1 Subject to the other terms of this clause, 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 Client relies on the Services at its own risk.

19.2 Without limiting the other terms of this clause, the Client acknowledges and agrees that:

(a) the Client is solely responsible for reviewing the selected Goods and Services and ensuring that they are fit and suitable for the Client’s purposes. The Supplier will not be liable in such circumstances except to the extent of any defect directly caused by the Supplier’s negligence or breach of this Agreement. To the extent permitted by law, the Supplier provides no representations or warranties that the Goods will be suitable for the Client’s purposes, and the Client must satisfy itself regarding the suitability of the Goods for their purpose;

(b) any advice, recommendation, information, assistance or service provided by the Supplier in relation to the Services supplied is given in good faith, is based on the Supplier’s own knowledge and experience and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services. Such advice, recommendations, information and assistance is followed or acted upon entirely at the Client’s own risk, and accordingly the Supplier shall not be liable for any such advice or recommendation;

(c) the Supplier reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Supplier’s specification, which do not materially affect their quality or performance;

(d) that Goods supplied may:

i) 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; and

ii) mark or stain if exposed to certain substances; and

iii) be damaged or disfigured by impact or scratching.

20. EXCLUSION AND LIMITATION OF LIABILITY

20.1 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.

20.2 Without limiting the generality of clause 20.1, the Supplier expressly excludes any liability in contract, tort or otherwise for any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:

(a) any act or omission of the Client or its Personnel, including any delay caused by the Client or its Personnel;

(b) any problem caused by misuse, abuse, wear and tear or abnormal movement; and

20.3 The Supplier will not be liable for, and any warranty provided does not extend to:

(a) changes in the colour, gloss, performance or appearance of the Goods due to environmental conditions, ageing or refinishing. Environmental conditions can affect the performance and appearance of the Goods such as colour change or variations to surfaces from full or partial exposure to sunlight, weather, ageing or refinishing (such as causing any coloured surface to gradually fade, chalk, or accumulate dirt or stains);

(b) colour and display variations due to individual characteristics of the Goods. Due to the natural variations and characteristics of materials used, variances will occur from batch to batch and the Supplier is unable to guarantee total uniformity of colour or texture within any pieces. Colour consistency of the Goods is not covered under this Agreement. Samples displayed and/or provided are indicative only and may not match the actual Goods provided. Other variations may occur during the manufacturing process. All variations are normal and not considered defects.

20.4 Subject to the other terms of this clause, the Supplier's total maximum aggregate liability to the Client 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 the actual charges paid by the Client to the Supplier under this Agreement in the 12-month period preceding the matter or event giving rise to the claim.

20.5 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.

20.6 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.

20.7 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.

20.8 Notwithstanding anything else in this clause, the Supplier’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client, or the Client's Personnel.

20.9 The Supplier will not be liable for any claim under or in relation to or arising out of this Agreement including a breach of any warranty unless:

(a) the Client has first made a claim under any insurance policy held by the Client that may cover that claim; and

(b) that claim has been denied in whole or partly by the relevant insurer.

20.10 If the Client recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of this Agreement and that amount is less than the loss or damage incurred by the Client, the amount of the shortfall will be the amount of the Client’s loss for the purposes of this Agreement.

20.11 The Supplier is not liable in respect of a claim unless the Client has notified the Supplier of the claim as soon as practicable after it becomes aware of it.

21. CANCELLATION & TERMINATION

21.1 The Supplier may cancel all or part of any order to which this Agreement applies or cancel the supply of Goods and Services at any time before the Goods and Services are delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any money paid by the Client for the Goods and Services which are cancelled. The Supplier shall not be liable for any Loss or damage whatsoever arising from such cancellation.

21.2 The Supplier may in its absolute discretion, by written notice to the Client, immediately terminate this Agreement or one or more Quotes (and shall have no liability for any Loss suffered by the Client due to the termination):

(a) if the Client fails to make payment of any amount due under this Agreement on time or otherwise in accordance with this Agreement;

(b) if the Client suffers an Insolvency Event;

(c) if the Client breaches this Agreement or a Quote and fails to rectify the breach within 7 days of being given a notice to do so; or

(d) 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, however the Supplier is not bound to terminate if this occurs).

21.3 The Client may not cancel the Services at any time except where expressly permitted by this Agreement.

21.4 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.

21.5 Upon termination of this Agreement the Client shall be liable to pay to the Supplier for all Services supplied by the Supplier up until the date of termination, and such amounts shall be a debt immediately due and owing. In the event that the Supplier terminates this Agreement under clause 21.2 except for due to a Force Majeure Event, then the Client will also be liable to pay the Supplier all amounts which would have otherwise been payable under the Quote had it not been terminated and such amount shall be a debt immediately due and owing.

21.6 The termination of a Quote does not affect any other Quote/s which shall continue.

21.7 The rights and remedies of the parties contained in this clause are in addition to any other rights and remedies by law, in equity or under this Agreement.

22. FORCE MAJEURE

22.1 The Supplier will not be in breach of this Agreement or liable to the Client for any Loss incurred by the Client as a direct result of the Supplier failing or being prevented, hindered or delayed in the performance of its obligations under this Agreement where such prevention, hindrance or delay results from an event, circumstance or cause beyond the Supplier’s reasonable control (Force Majeure Event). This includes for example if the weather causes a delay to the installation of the Goods.

22.2 If a Force Majeure Event occurs, the Supplier must notify the Client in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.

22.3 On providing the notice in clause 22.2, the Supplier will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Supplier must continue to use all reasonable endeavours to perform those obligations.

22.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

23. NO ASSIGNMENT

23.1 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.

24. NOTICES

24.1 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.

24.2 The following shall constitute proof of receipt:

(a) proof by posting by registered post; or

(b) proof of dispatch by email.

24.3 Receipt of a notice given under this Agreement will be deemed to occur:

(a) in the case of a communication sent by pre-paid registered post, on the third business day after posting;

(b) in the case of an email, on the business day immediately following the day of dispatch.

24.4 If a notice is sent via post, it must also be sent via email.

25. GENERAL

25.1 Variation

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

25.2 No Waiver

(a) 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.

(b) Words or conduct referred to in clause 25.2(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.

25.3 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.

25.4 Costs

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

25.5 Severability

(a) If the whole or any part of a provision of this Agreement are 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.

(b) Clause 25.5(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.

25.6 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.

25.7 Survival

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

25.8 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.

25.9 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.

25.10 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.

25.11 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.

25.12 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.

25.13 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.

25.14 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.