Terms and Conditions

THE PARTIES AGREE:

  1. DEFINITIONS
    1. In these Terms unless inconsistent with the context or subject matter:
      1. “ACL” means the Australian Consumer Law (as set out in Quote 2 to the Competition and Consumer Act 2010 (Cth));
      2. “Claim” means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity);
      3. “Client” means the Client identified in the Quote, and if there is more than one Client is a reference to each Client jointly and severally;
      4. “Client’s Address for Service” means the email address or address of the Client set out in the Quote;
      5. “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;
      6. “Force Majeure” means an act, omission or circumstance over which the Supplier could not reasonably have exercised control;
      7. “Goods” means any goods (such as horse stable solutions and stable accessories and equipment) supplied by the Supplier to the Client from time to time;
      8. “GST” has the meaning given to it in the GST Act;
      9. “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
      10. “Guarantor” means any person named as guarantor in the Quote;
      11. “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;
        3. any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i)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;
        4. 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;
        5. 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
        6. 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
      12. “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
        3. 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;
      13. “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);
      14. “Plans” means any structural or other plans, specifications, documents, instructions or information (including verbal instructions or descriptions) provided by the Client (or its Personnel) to the Supplier or otherwise provided by the Supplier to the Client;
      15. “PPSA” means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;
      16. “PPS Register” means the Personal Property Securities Register established under the PPSA;
      17. “Quote” means any quote provided by the Supplier to the Client, including a verbal quote;
      18. “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);
      19. “Site” means any site at which the Services are to be provided;
      20. “Supplier” means Champion Stable Systems Pty Ltd ACN 628 330 950;
      21. “Supplier’s Address for Service” means leon@championstables.com.au;
      22. “State” means Victoria; and
      23. “Tax Invoice” has the same meaning as in the GST Act.
    2. In these Terms unless inconsistent with the context or subject matter:
      1. References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
      2. Words denoting the singular include the plural and words denoting the plural include the singular.
      3. Words denoting any gender include all genders.
      4. The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
      5. 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.
      6. 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.
      7. No provision of these Terms will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms.
      8. 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.
      9. A reference to time is a reference to time in the capital city of the State.
      10. A reference to a day is a reference to a day in the capital city of the State.
      11. A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
      12. If any act is required to be performed under these Terms 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.
      13. 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.
      14. Where these Terms 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.
      15. A reference to writing or written includes email.
      16. Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
  2. APPLICATION
    1. These Terms, including any Quote, will become binding on the Client on the earlier of the date that a) they are provided to the Client; b) the Client instructs the Supplier to proceed with any Services; or c) the Client pays any amount to the Supplier in respect of the Services.
    2. These Terms apply to all Services provided by the Supplier to the Client at any time following the time when these Terms become binding on the Client.
    3. The Client cannot terminate these Terms except to the extent as expressly permitted by these Terms.
    4. The Client acknowledges and agrees that the supply of 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 Services (and issue a refund for the cancelled 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.
    5. 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 these Terms unless otherwise agreed by the Supplier in writing. These Terms replace and supersede any invoice, terms or other document given by the Client to the Supplier whether before or after the time that these Terms are supplied to the Client.
  3. PROVISION OF SERVICES
    1. The Supplier and the Client agree that the Supplier will provide the Services to the Client on the terms and conditions contained in these Terms.
    2. The scope of the Services is as agreed by the parties in writing (including via a Quote) or verbally. In the event of disagreement as to what scope of Services was agreed (in the event of a verbal scope), the Supplier’s determination of the scope will be final and binding.
    3. The Quote may contain additional terms which form part of these Terms. In the event of any inconsistency between these Terms and any Quote, the terms contained in the Quote will prevail to the extent of such inconsistency.
    4. The Supplier may subcontract, delegate or perform the Services through any person without the prior written consent of the Client.
    5. 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 these Terms.
  4. FEES
    1. The fees payable by the Client to the Supplier for the Services is the amount either 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 delivery) which is available upon request, plus the costs of any Goods supplied.
    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 Services, in the event of:
      1. variations to the Services requested (including the specifications of the Goods);
      2. 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 otherwise inaccurate Plans, or where additional Services are required due to unforeseen circumstances which are beyond the Supplier’s control.
    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.
  5. PAYMENT
    1. The Client must pay the fees for the Services at the time/s as specified in the Quote. If no time/s are stated or no Quote given, then the Supplier will provide the Client with a Tax Invoice for the fees upon completion of the Services and that Tax Invoice is payable within 7 days of the date of the invoice.
    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 or manufacture the Goods or undertake the installation until payment is received.
    3. Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (a surcharge of up to two and a half percent (2.5%) of the fees will be payable in that case), or by any other method as agreed to between the Supplier and the Client. All fees are non-refundable to the extent permitted by law.
    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 these Terms.
    5. If payment is not made in accordance with this clause 5, the Supplier may (without limitation to its other rights):
      1. 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 2.5% per calendar month accruing daily and compounding monthly;
      2. demand payment and all money payable under these Terms or any Quote to the Supplier shall immediately become due and payable;
      3. 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
      4. terminate these Terms whereupon the full price for the Services then supplied, whether or not the time for payment under these Terms has arrived, will be immediately due and payable.
    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.
    7. The Client must pay all duties, taxes and fees, which in any way relate to these Terms, any supply made under these Terms or any transaction contemplated by these Terms. Unless otherwise stated the consideration for any supply under or in connection with these Terms does not include GST.
    8. To the extent that any supply made under or in connection with these Terms are a taxable supply, the amount payable by the recipient is the consideration provided under these Terms for that supply (unless it expressly includes GST) plus an amount (Additional Amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The recipient must pay the Additional Amount at the same time as the consideration to which it is referable, and on the issue of an invoice relating to the supply.
  6. PLANS & VARIATIONS
    1. The scope of the Services being provided will be as agreed upon in the Quote and where Plans are provided, all fees quoted or calculated are based on such Plans.
    2. All customary building industry tolerances shall apply to the dimensions and measurements of the Goods unless the Supplier and the Client agree otherwise in writing.
    3. The Supplier shall be entitled to rely on the accuracy of any Plans provided by the Client.
    4. If the giving of an estimate or Quote for the supply of Services involves the Supplier estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of the Supplier’s estimated measurements and quantities, before the Client places an order based on such estimate or accepts such Quote or on signed Plans. Where the Supplier prepares any Plans, the Client is solely responsible for reviewing them and ensuring that they are fit for the Client’s purposes, suitable and correct. The Supplier is not liable for any defect in the Plans, even if the Supplier prepares the Plans.
    5. Should the Client require any changes to the Supplier’s estimated measurements and quantities, the Client shall request such changes in writing before accepting the Quote for the relevant Services.
    6. 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 Quote 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).
    7. Despite this, the Supplier shall be under no obligation to vary the Services set out in a Quote even if the Supplier becomes aware of the requirement for additional Services or a defect or error in the Plans. The Client is solely responsible for ensuring the Plans and scope of Services are suitable.
    8. The Client is solely liable for the payment of any additional Services outside of the scope as agreed upon in the Quote.
  7. SITE ACCESS AND STORAGE
    1. The Client must ensure that:
      1. 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;
      2. the Site complies with best practice work health and safety requirements and standards;
      3. the Site is clear of bricks, timber, sand and any other rubbish; and
      4. electricity is supplied on Site (and the Client/its Personnel must organise a working generator at their cost in the case of no electricity supply to the Site).
    2. In the event that the Client fails to comply with clause 7.1, the Services will be delayed and the Client will pay to the Supplier an amount of $[insert]+GST per hour that the Site is non-compliant with clause 7.1 immediately on demand by the Supplier.
    3. 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).
    4. The Client represents and warrants to the Supplier that:
      1. 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
      2. it has all necessary rights and authorities to grant the Supplier access to the Site, and that by accessing the Site in accordance with these Terms, the Supplier will not be infringing any third party rights.
  8. CLIENT OBLIGATIONS
    1. The Client must give the Supplier at least 14 days’ written notice of:
      1. any proposed change in the shareholding of the Client (provided that the Client is not listed on a recognised securities exchange) that results in a different person or group of persons having control of the composition of the board of directors or more than 50% of the shares giving a right to vote at general meetings; and/or
      2. any proposed change to the Client’s details including but not limited to, changes to the Client’s name, address, email, contact phone or fax number/s or business practice.
    2. The Client shall be liable for any Loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.
  9. OWNERSHIP, RISK AND ASSESSMENT
    1. Not withstanding anything to the contrary express or implied in these Terms, 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.
    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.
    3. Notwithstanding anything to the contrary express or implied in these Terms, 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:
      1. the delivery or collection of the Goods to/by the Client (as the case may be);
      2. installation in or attachment of the Goods to the Client’s Site; and/or
      3. the possession and use of the Goods by the Client.
    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.
    5. Even if the Supplier retains ownership of the Goods, all risk for the Goods passes to the Client:
      1. on delivery of the Goods to the Client or the nominee of the Client; or
      2. if the Supplier’s nominated delivery carrier is unable to deliver the item to the place nominated by the Client for any reason, when the Supplier’s nominated delivery carrier makes their first attempt to deliver.
    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.
    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:
      1. receive payment for the Goods; and
      2. 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 these Terms 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
    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):
      1. it will not, and will ensure the Personnel do not, use the Equipment without the Supplier’s consent;
      2. 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;
      3. 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;
      4. 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
      5. 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;
      6. 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
      7. 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.
  10. DELIVERY OF GOODS
    1. At the Supplier’s sole, absolute and unfettered discretion, delivery of the Goods shall take place when:
      1. the Goods are installed in or attached to the Client’s property; or
      2. the Client or its Personnel takes possession of the Goods at the Supplier’s address; or
      3. the Goods are delivered by the Supplier at the Site (in the event that the Goods are delivered to the Client).
    2. The Client must pay all costs associated with the delivery and insurance (during transit) of the Goods as specified in the Quote. 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.
    3. Delivery of the Goods to the Site nominated by the Client is deemed to be delivery to the Client for the purposes of these Terms. 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).
    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.
    5. The Supplier may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions of these Terms.
    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.
  11. PERSONAL PROPERTY SECURITIES
    1. The Client acknowledges and agrees that notwithstanding any other provision of these Terms:
      1. the PPSA applies to any performance of Services of any kind and the supply of Goods by the Supplier to the Client;
      2. the Goods are used by the Client only for commercial purposes and are not used by the Client for personal, domestic or household purposes;
      3. the Goods the Client is receiving from the Supplier are not to be used as inventory;
      4. by agreeing to and/or accepting or adopting these Terms the Client grants to the Supplier:
        1. a purchase money security interest in the Goods; and
        2. 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
        3. 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 these Terms and any other monies payable by the Client to the Supplier from time to time on any account whatsoever.
      5. 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;
      6. the Client agrees that the Supplier’s security interest in Equipment and the Goods and the Client’s Property covered by these Terms 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;
      7. 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;
      8. the Client unconditionally and irrevocably appoints the Supplier as its attorney to do any of acts and matters set out in this clause 11 in the event that the Client fails, delays or declines to execute such documents or do such acts;
      9. 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;
      10. 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;
      11. 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 these Terms;
      12. 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 these Terms;
      13. neither the Supplier nor the Client will disclose any information to any interested person unless required to do so under the PPSA;
      14. 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 these Terms 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, the Equipment and/or the Client’s Property in satisfaction of any obligation owed by the Client to the Supplier;
        3. to receive a statement of account following the sale of the Client’s Property; or
        4. to redeem the Client’s Property;
      15. 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
      16. 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 these Terms.
    2. 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.
    3. Further Supplies/Services
      1. Enforcement
        1. The enforcement provisions contained in these Terms are in addition to any rights available to the Supplier under the PPSA and apply to the maximum extent permitted by law.
        2. Without limitation to clause 11.4(a) and any other provision of these Terms section 125, 129(2), 142 and 143 of the PPSA are contracted out of.
      2. 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 these Terms, the PPSA or otherwise, if the Client is in default of these Terms.
      3. Interpretation A term used in this clause 11 is taken to have the meaning defined under the PPSA.
    4. PERFORMANCE SERVICES
      1. The provision of Services by the Supplier to the Client will take place at a time agreed between the Supplier and the Client.
      2. 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 these Terms.
      3. 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.
      4. 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 Quote being accepted, the Supplier allocates resources and time to the fulfillment of that Quote.
      5. The Services exclude demolition works, permits, and anything required due to tight access to the Site (such as the provision of a traffic management plan) and anything else which is stated as an exclusion within the Quote or which is not otherwise stated as an inclusion. The Client is solely responsible for procuring these requirements.
    5. ACCEPTANCE AND DEFECTIVE SERVICES
      1. The Client must inspect the provision of the Services (including the Goods) immediately on the completion of the provision of the Services (this includes on delivery and installation where applicable).
      2. The Client may reject as defective any Services delivered to it that do not comply with the requirements of these Terms provided that the Client gives notice of rejection:
        1. in the case of a defect that is apparent on normal visual inspection within 48 hours of delivery; or
        2. in the case of a latent defect, within a reasonable time of the latent defect having become apparent.
      3. Upon such notification of defective Services, the Client must:
        1. provide any photographic evidence requested by the Supplier; and
        2. allow the Supplier to inspect the Services supplied to determine whether they are defective (this includes granting the Supplier unimpeded access to inspect such Goods).
      4. If the Client is aware or ought reasonably to be aware that the Services are defective for any reason, then the Client must take all necessary steps to mitigate any Loss. The Client must not attempt to repair any Goods itself except where directed by the Supplier in writing.
      5. 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 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.
      6. Subject to the terms of this clause, the Services will only be dealt with in accordance with this clause provided that:
        1. the Client has complied with the other terms of this clause;
        2. the Supplier has agreed (in its reasonable opinion) that the Services are defective;
        3. the Goods to which the defective Services relates to are returned within 14 days to the Supplier (if necessary) at the Client’s cost; and
        4. the returned Goods are accompanied by all original delivery documentation.
      7. Notwithstanding the above clauses, the Supplier will not be liable for or required to accept any return for any defect or damage where such defect or damage is caused or partly caused by or arises as a result of:
        1. the Client’s acts or omissions, including the Client failing to take reasonable steps to prevent them from becoming defective or the Client failing to follow the Supplier’s instructions or best industry practice or any other obligations set out in these Terms;
        2. the Supplier following any instructions supplied by the Client;
        3. the Client altering, modifying or repairing the Goods without the written consent of the Supplier;
        4. the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a prudent operator or user;
        5. wilful damage, negligence, or incorrect storage;
        6. fair wear and tear; or
        7. any accident or circumstance outside the reasonable control of the Supplier.
      8. The Client is solely responsible for ensuring that the provision of the Services are suitable or adequate for its purposes. The Client acknowledges that prior to execution it has satisfied itself by independent investigation as to the suitability of the Services for its purposes and as to the requirements of any applicable legislation or any relevant government authority. To the fullest extent permitted by law all warranties as to suitability and as to adequacy otherwise applicable are expressly negatived.
      9. Where the Client arranges for the transport and logistics of the Goods, the Client takes sole responsibility of such, and the Supplier expressly excludes all warranties with respect to any defect or damage that occurs as a result of the transport and logistics arranged by the Client.
      10. The Supplier may in its absolute discretion accept non-defective Goods for return in which case the Supplier may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
      11. Exclusion of liability Notwithstanding any other clause in these Terms, 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:
        1. any components or materials supplied by the Client;
        2. any services carried out by third parties;
        3. 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.
    6. WARRANTIES
      1. The warranties contained in clause 14(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 these Terms and will be continuing warranties which will survive the termination or expiration of these Terms.
      2. The Client warrants to the Supplier that as at the date of these Terms and for the duration of these Terms:
        1. 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;
        2. the information contained in these Terms are true and correct and it has disclosed all relevant information to the Supplier to assess the credit-worthiness of the Client;
        3. it has the legal right and power to enter into these Terms;
        4. the execution, delivery and performance of these Terms by the Client has been duly and validly authorised by all necessary corporate action on its part;
        5. these Terms are a valid and binding agreement on the Client, enforceable in accordance with its terms;
        6. the Client is not suffering an Insolvency Event and no Insolvency Event is imminent; and
        7. it has the capacity to make the payment in accordance with these Terms.
    7. INDEMNITY AND RELEASE
      1. Except as provided under these Terms 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.
      2. Except to the extent caused or contributed to by the breach of these Terms 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:
        1. any Claim made against the Supplier and/or the Client by a third party arising out of or in connection with the provision of the Services and/or these Terms;
        2. the Client’s breach or negligent performance or non-performance of these Terms, including any failure to pay any fees on time;
        3. any event or cause, beyond the control of the Supplier including a Force Majeure;
        4. 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 these Terms;
        5. the enforcement of these Terms; and
        6. any act, omission or wilful misconduct of the Client or the Client’s Personnel (including any negligent act or omission).
      3. The Client must make payments under this clause:
        1. in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
        2. in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
      4. The indemnities in this clause:
        1. are continuing obligations of the Client, independent from its other obligations under these Terms and survive termination or expiry of these Terms; and
        2. 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.
    8. DISCLAIMER
      1. 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.
      2. Without limiting the other terms of this clause, the Client acknowledges and agrees that:
        1. 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;
        2. 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;
        3. that Goods supplied may
          1. 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
          2. mark or stain if exposed to certain substances; and
          3. be damaged or disfigured by impact or scratching.
    9. EXCLUSION AND LIMITATION OF LIABILITY
      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 these Terms to the maximum extent permitted by law.
      2. Without limiting the generality of clause 17.1, the Supplier expressly excludes any liability in contract, tort or otherwise for any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:
        1. any act or omission of the Client or its Personnel, including any delay caused by the Client or its Personnel;
        2. any problem caused by misuse, abuse, wear and tear or abnormal movement; and
        3. any defect in, or problem caused by, materials or goods supplied by the Client or its Personnel.
      3. 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 these Terms, including any breach by the Supplier of these Terms 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 these Terms in the 12-month period preceding the matter or event giving rise to the claim.
      4. Nothing in these Terms are 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.
      5. 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.
      6. Without limitation to the other terms of these Terms, 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 these Terms.
    10. CANCELLATION & TERMINATION
      1. The Supplier may cancel all or part of any order to which these Terms applies or cancel delivery of Services at any time before the 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 Services which are cancelled. The Supplier shall not be liable for any Loss or damage whatsoever arising from such cancellation.
      2. The Supplier may in its absolute discretion, by written notice to the Client, immediately terminate these Terms or one or more Quotes (and shall have no liability for any Loss suffered by the Client due to the termination):
        1. if the Client fails to make payment of any amount due under these Terms on time or otherwise in accordance with these Terms;
        2. if the Client suffers an Insolvency Event;
        3. if the Client breaches these Terms or a Quote and fails to rectify the breach within 7 days of being given a notice to do so; or
        4. 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).
      3. The Client may not cancel the Services at any time except where expressly permitted by these Terms.
      4. The Client may terminate these Terms if the Supplier breaches the terms of these Terms and fails to rectify the breach within 14 days of being given a notice to do so. The Client may not otherwise terminate these Terms.
      5. Upon termination of these Terms 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 these Terms except for due to an event of Force Majeure, 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.
      6. The termination of a Quote does not affect any other Quote/s which shall continue.
      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 these Terms.
    11. INTELLECTUAL PROPERTY
      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.
      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.
      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.
      4. The Client agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Supplier has created for the Client.
    12. NO ASSIGNMENT
      1. The Client must not transfer or assign its rights under these Terms 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.
      2. The Client acknowledges and agrees that the Supplier may transfer, assign or otherwise dispose of its interest in these Terms upon giving written notice to the Client.
    13. NOTICES
      1. All notices authorised or required under these Terms 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.
      2. The following shall constitute proof of receipt:
        1. proof by posting by registered post; or
        2. proof of dispatch by email.
      3. Receipt of a notice given under these Terms will be deemed to occur:
        1. in the case of a communication sent by pre-paid registered post, on the third business day after posting;
        2. in the case of an email, on the business day immediately following the day of dispatch.
      4. If a notice is sent via post, it must also be sent via email.
    14. BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002
      1. At the Supplier’s sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
      2. Nothing in these Terms are intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 (Vic), except to the extent permitted by the Act where applicable.
    15. GENERAL
      1. Variation An amendment or variation of any term of these Terms must be in writing and signed by each party.
      2. No Waiver
        1. 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 these Terms 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.
        2. Words or conduct referred to in clause 23.2(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.
      3. Counterparts These Terms may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute these Terms by signing any counterpart. The date on which the last counterpart is executed is the date of these Terms. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.
      4. Costs The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms.
      5. Severability
        1. If the whole or any part of a provision of these Terms 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.
        2. Clause 23.5(a) does not apply if the severance of a provision of these Terms in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms.
      6. No Merger On completion or termination of these Terms, the rights and obligations of the parties set out in these Terms will not merge and any provision that has not been fulfilled remains in force.
      7. Survival Any clause which by its nature is intended to survive termination or expiry of these Terms will survive such termination or expiry.
      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 these Terms and the transactions contemplated by these Terms.
      9. Time of the Essence Time is of the essence in these Terms in respect of any date or time period and any obligation to pay money.
      10. Relationship of the Parties Nothing in these Terms gives a party authority to bind any other party in any way. Nothing in these Terms imposes any fiduciary duties on a party in relation to any other party.
      11. Remedies Cumulative Except as provided in these Terms and permitted by law, the rights, powers and remedies provided in these Terms are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms.
      12. Entire Agreement These Terms 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.
      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 these Terms.
      14. Governing Law and Jurisdiction These Terms 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 these Terms.
    16. GUARANTEE AND INDEMNITY
      1. In consideration of the Supplier, at the request of the Guarantor, entering into these Terms with the Client, the Guarantor covenants and agrees with the Supplier that:
        1. 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.
        2. 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 these Terms and for the due performance and observance by the Client of these Terms 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.
        3. 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 these Terms 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 these Terms.
        4. On any default or failure by the Client to observe and perform any of these Terms 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 these Terms 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 these Terms).
        5. 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.
        6. 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.
        7. 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 these Terms, 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 24, whether by a mortgage over the Guarantor’s real property or by registration of a security interest on the PPS Register or otherwise;
          3. 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 24.
        8. If the charges created by sub-clause 24.1(g)i) are or become void or unenforceable, sub-clause 24.1(g)i) may be severed from these Terms and these Terms 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.
        9. 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.
        10. The Guarantor does not execute these Terms 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.
        11. 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.
        12. 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 Quote, 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.
        13. 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.