Terms and Conditions

Clauses 7 – 9 outline how we get paid for Services, including making payment, credit accounts and our security for payment

8. Security Over Real Estate

(a) To secure payment of all monies You owe Us for the supply of Goods and Services, You:

i) Charge all of Your interest in real and personal property (including all property acquired after the date of these Terms) in favour of Us, whether or not a demand has been made on You (“Charge”). This Charge constitutes a General Security Agreement for the purposes of the PPSA;

ii) Authorise and consent to Us taking all actions necessary to give effect to the Charge, including the lodgement of a caveat upon any title of Your real property, whether held in Your own right or as trustee of any trust, or any other security document; and

iii) Agree to deliver to Us within 7 days of written demand a Memorandum of Mortgage in registrable form. You agree that any amount payable to Us payable on demand incorporating the covenants contained in Memorandum No. Q860000 registered at the Land Registry Services New South Wales as amended to comply with and reflect any appropriate laws in the jurisdiction(s) where You have any beneficial interest in real and personal property and as amended appropriately to comply with any formal requirements of registration.

iv) Irrevocably appoint Us and any person nominated by Us severally as Your attorney, with power to execute, sign and deliver (which delivery may be subject to such terms and conditions as the attorney thinks fit) such caveat, mortgage or other security document to effect the Charge granted under this part.



9. Personal Property Securities Act 2009 (Cth) Security for Goods Supplied

(a) You acknowledge and agree that these Terms constitute a security agreement for the purposes of the PPSA (“Security Agreement”) and create a security interest in the Goods supplied by Us from time to time and any proceeds of the sale of the Goods to secure payment for the Goods supplied (“Security Interest”).

(b) Each sale or supply of Goods by Us under these Terms is subject to the Security Agreement for the purposes of the PPSA.

(c) We may lodge a financing statement on the Personal Property Securities Register (“PPSR”) in respect of the Security Interest in the Goods and the proceeds of the sale of the Goods, including as a purchase money security interest (as that term is defined in the PPSA) (“PMSI”), pursuant to these Terms.

Clause 10 outlines how to deal with issues that may arise, including returns

10. Returns

(a) Unless We agree otherwise in writing, We are not required to accept returned Goods from You or issue You with a credit for Goods and Services. Our consent to return Goods will not be unreasonably withheld.

(a) If You think any Goods or Services are defective, damaged, missing or misdelivered, You must notify Us of any complaint in writing and within 7 days of delivery/collection of the Goods or Services. You must take all steps necessary to mitigate any Loss arising from any defect in the Goods or Services supplied. You will be deemed to accept the Goods and Services (including any defects) if You do not make a complaint in accordance with these Terms.

(b) Any complaint under this section must be accompanied by:

i) Proof of purchase;

ii) Written details of the alleged defect including photographs;



iii) Appropriate documentation (such as installation and maintenance records).

(c) You must allow Us or Our authorised representatives access to the Goods or Site for inspection.

(d) Goods which are not manufactured by Us are subject solely to the warranties (if any) specified by the third-party manufacturers or suppliers to Us. To the extent permitted by law, We give no warranties beyond the third-party manufacturer or supplier warranties.

(e) If We agree to accept Goods by return or provide You with a credit, You must provide Your proof of purchase for the Goods being returned.

(f) We may charge You reasonable restocking, disposal or repacking charges which We incur from the Goods being returned.

(g) Goods which are already installed, custom built, or not in original or resaleable condition cannot be returned, including Goods which are not in their original shipping cartons.

(h) You are responsible for any Additional Expenses associated with any return of Goods.

(i) Credits may only be redeemed against future orders and subject to Our minimum order policy. No cash refunds will be issued for credits.

Clauses 11 – 13 outline the exclusions, limitations of liability and indemnities applicable to each party under these Terms

11. Warranties and Exclusions

(a) Neither party excludes or limits the application of any statute (including the Competition and Consumer Act 2010 (Cth) as amended from time to time (“the Act”)), where to do so would contravene that statute or cause any provision of these Terms and Conditions to be void. Nothing in these Terms and Conditions modifies or excludes the conditions, warranties, and undertakings and other legal rights under the Act and other laws.

(b) If You are a consumer as that term is defined under the Australian Consumer Law, Our Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods and Services repaired or replaced if the Goods and Services fail to be of acceptable quality and the failure does not amount to a major failure. The benefits provided to You under this part are in addition to other rights and remedies available to You under the law.

(c) However, We only deal with commercial customers purchasing Goods and Services for business purposes and We do not deal with Consumers (as that term is defined in the Australian Consumer Law). The Australian Consumer Law will not apply to Goods and Services sold by Us. When purchasing Goods and Services You acknowledge that

You are not a Consumer (as that term is defined in the Australian Consumer Law).

(d) Except as expressly set out in the Act, these Terms and Conditions or a separate warranty document, We make no warranties or other representations under or in connection with these Terms and Conditions, and Our liability in respect thereof, is limited to the fullest extent permitted by law.

(e) You acknowledge that We make no representations or warranties as to the fitness or suitability for any purpose of any of the Goods (whether express or implied and even if that purpose is made known to Us) and You agree that You have not relied on any inducement, representation or statement made by or on behalf of Us in purchasing the goods. You are responsible for ensuring that the Goods are suitable for Your intended use.

(f) No sale under these Terms constitutes a sale by sample. You acknowledge that any sample may vary from the goods that are produced.

(g) No sale under these Terms constitutes a sale by description. Any description of goods is by way of identification only.

(h) To the extent permitted by law, all other implied conditions and warranties are excluded.

12. Limitation of Liability

(a) If We are lawfully allowed to limit our liability to You in respect of the Goods and Services, then Our liability to You is limited to Our choice of:

i) re-supply of the Goods and/or Services; or

ii) the cost to replace the Goods and/or Services with equivalent Goods and/or Services; or

iii) repair of the Goods, or cost to repair the Goods; or

iv) reimbursement of some or all of the price paid by You for the Goods and/or Services.

(b) In any other situation, including but not limited to Our breach of these terms, tort law or negligence, then Our liability to You will not exceed the price of the Goods and/or Services supplied by Us (to the extent that is permitted by law).

(c) We are not liable to You for any loss of profits, loss of sales, loss of market, loss of goodwill or reputation, third party claims, incidental or special damages or indirect or consequential loss of any kind.

(d) We will not be liable to You if:-

i) Goods and Services have not been paid for;

ii) Goods have been abused, misused or neglected by You;

iii) We cannot establish any defect in the Goods after inspection;

iv) You have used the Goods other than for the purposes for which they were designed, including for an illegal purpose;

v) Goods have been repaired, altered or modified by someone other than Us;

vi) Goods have been subject to abnormal conditions, including environment, temperature, water, fire, humidity, pressure or other stress; and



vii) A defect has arisen due to Your failure to assemble, use, handle and maintain the Goods in accordance with Our care and maintenance recommendations or industry-accepted standards;

(e) Neither party will be liable for any breach of these Terms which is wholly or partly caused by a Force Majeure event. This exclusion does not include Your obligation to pay for Goods and Services and any Additional Expenses.

13. Indemnities

(a) To the extent permitted by law, You indemnify Us against and You must pay Us for any Loss that We may suffer or incur as a result of any act or omission by You (or any entity or person that You are responsible for) in relation to the Goods and Services and/or these Terms, including but not limited to any breach of these Terms by You, Your negligence, Your failure to perform the obligations in these Terms and any claim made by You against Us.

(b) Specifically, You must indemnify Us and hold Us harmless (or Our agents, employees or contractors) from:

i) All reasonable legal costs which We incur as a result of any breach, act or omission by You under these Terms, however that breach, act or omission arises. This includes, but is not limited to, legal or mercantile agent fees on an indemnity basis in the recovery or attempted recovery of any overdue amount for Services and any action taken to secure any charge;

ii) Any stamp duty or other government rates, taxes (including GST) or charges levied on or in connection with the Credit Account and supply of Goods and Services;

iii) Any loss and damage incurred by Us as a result of You cancelling your Order after 24 hours, including but not limited to any Additional Expenses;

iv) All costs associated with the registration, maintenance and withdrawal of any Security Interest created under these Terms;

v) Any and all Loss arising out of damage to Our Equipment on Site (including any loss of or damage to property) except to the extent that such Loss is caused by Our negligence or breach;

vi) Any and all Loss arising out of Your (or Your agent, employee, contractor or other representative’s) attendance at Our premises or the Site;

vii) Any and all Loss arising out of Your failure to provide a safe, suitable and compliant Site for Services (including any personal injury or death) except to the extent that We have committed an act of negligence, breach of the law or breach of the Terms;



viii) Any liability that We incur in connection with Our reliance on information provided by You or on Your behalf which is inaccurate, incomplete or misleading, or Your failure to provide Us with relevant information.

(c) This indemnity is a continuing obligation which is separate and independent from your other obligations under these Terms or at law and this indemnity survives termination of these Terms. For clarity, this indemnity does not apply to Loss which is caused by Our breach of these Terms.

Clauses 14 and 15 deal with the end of these Terms, including resolving disputes or termination if applicable

14. Dispute Resolution

(a) If a dispute arises between the parties, the following procedure applies:

i) Either party may give the other a notice of the dispute. This means that the dispute must be dealt with in accordance with this section;

ii) Either party must not commence legal proceedings (except proceedings seeking interlocutory relief) about the dispute unless the dispute has been referred for resolution under this paragraph;

iii) Either party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute, pending the completion or termination of the procedure set out in this paragraph;

iv) If a dispute is notified, each party must immediately refer the dispute to its senior management. Those representatives must endeavour to resolve the dispute as soon as possible, but at least within 30 days (or other period as agreed between the parties);

v) At Our sole discretion, We may elect to resolve any dispute by mediation via the Australian Commercial Disputes Centre (ACDC) before commencing arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which operate at the time the matter is referred to ACDC. The ACDC Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. This paragraph survives termination of these Terms;

vi) The parties must continue to perform their respective obligations under these Terms, even if a dispute exists (including the referral of the dispute to mediation);



vii) The parties must keep all information relating to any dispute confidential for the purposes of dispute resolution, unless otherwise required by law or at the direction of a court of competent jurisdiction. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

15. Termination

(a) Our termination rights are:

What We can do

We can by written notice:

• Suspend or cancel supply of Goods and Services or any current Order(s) for Goods and Services; and/or
• Suspend or terminate Your Credit Account; and/or
• Require immediate payment of the balance of any Credit Account, invoices or any other amounts due and payable whether or not the Due Date has expired; and/or
• Register a default with any credit reporting agency, where applicable; and/or
• Enforce Our rights under any Security Interest; and/or
• Suspend or terminate the contract created by these Terms (“Our Termination Rights”)

(b) We can exercise Our Termination Rights immediately when:

When We can exercise Our Termination Rights

• You have not paid for Goods and Services by the Due Date; and/or • You exceed the limit of Your Credit Account; and/or
• You breach a material term of these Terms; and/or
• Either of the parties suffer a Force Majeure Event which delays or prevents performance of the whole or any part of these Terms; and/or • You allow distress to be levied or a judgment, order or security to be enforced, or to become enforceable against Your property including under the PPSA;
• You engage in illegal activity related to the Services; • You engage in conduct which, in Our reasonable opinion, may damage Our goodwill or reputation; and/or
• An Insolvency Event occurs.

(c) Otherwise, either party may terminate these Terms:

i) Immediately by written notice if the other party is in breach of a material term of these Terms and the breach is not rectified within 14 days of the termination notice; or

ii) In all other circumstances, by giving the other party 30 days’ written notice.

(d) If a termination notice is given to a party for breach of these Terms, the terminating party may also:

i) recover any of its equipment, property, goods, materials and all related data, documentation and records in the possession, custody or control of the party at fault;

ii) recover any sums paid to the party at fault on any account or for services which have not been fulfilled or performed;

iii) subject to any limitation on liability applicable to the party at fault, recover from the party at fault the amount of any loss or damage sustained as a consequence of the termination, including loss of the benefits which the performance of these Terms would have conferred on the terminating party;

iv) be regarded as discharged from any further obligations under these Terms; and



v) pursue any additional or alternative remedies provided by law.

Clauses 16 – 17 provide general information applicable to the Terms,

16. General

(a) Any clauses which are expressed to or are, by their nature, intended to survive expiry or termination of these Terms will survive expiry or termination of these Terms for any reason.

(b) A failure to exercise or a delay in exercising any right, power or remedy under these Terms does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

(c) If any provision (whole or part) of these Terms is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If modification is not possible, the relevant provision (whole or part) will be deleted. Any modified or deleted provision will not affect the validity and enforceability of the rest of these Terms.

(d) These Terms may be executed in any number of counterparts, each of which when executed and delivered constitutes a duplicate original, but all counterparts together constitute one agreement.

(e) In addition to any other method of service provided by law, a notice may be sent by prepaid post, facsimile, email or courier to the address of a party as that address set out in the Contract or subsequently notified. A notice has no legal effect unless it is in writing.

(f) A notice is deemed to have been delivered and received on the day if by hand, courier, email or fax, or otherwise on the second business day after posting.