Terms and Conditions of Supply

Recitals

1. The Supplier is engaged in the business of supply of new and used machinery and related services.

2. The Customer wishes to purchase Goods.

3. The parties have agreed that these Terms will apply to the supply by the Supplier of Goods to the Customer.

Terms

1. In these Terms, unless the context otherwise requires:

Accepted Order means an Order that the Supplier has accepted in accordance with clause 8;

ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;

Agreement means an agreement for the provision of Goods, constituted by the documents referred to in clause 8;

consumer is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;

Customer means the party, jointly and severally if more than one, acquiring Goods from the Supplier;

Force Majeure Event means a circumstance beyond the reasonable control of the parties that results in a party being unable to observe or perform on time an obligation under an Agreement or these Terms, including but not limited to acts of God, natural disasters, explosions, fires, acts of war (declared or undeclared), acts of public enemies, terrorism, insurrection, strikes, malicious damage or intervention, sabotage, denial of service attack, Government restriction or prohibition;

Goods means the goods and services supplied or to be supplied by the Supplier to the Customer from time to time;

GST means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;

Insolvency Event means in respect of a party:

(a) the party commits an act of insolvency or is unable or is deemed to be unable to pay its debts as and when they fall due;
(b) the party enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of its creditors, or proposes a reorganisation, moratorium or other administration involving it;
(c) the party enters into a debt arrangement or composition with its creditors pursuant to the Corporations Act 2001 (Cth);
(d) an administrator under the Corporations Act 2001 (Cth) is appointed to the party;
(e) the party goes into liquidation; or
(f) a receiver or manager is appointed over the assets of the party, or an event of equivalent effect occurs in any jurisdiction;

Order means an order in writing for the Goods specified in a Quotation submitted by the Customer to the Supplier;

PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;

Price means price, fees and/or rates for Goods.

Quotation means a written quotation or proposal, issued by the Supplier to the Customer, in respect of any Goods proposed to be provided under these Terms, which may include:

(a) the nature of the Goods to be provided;
(b) any specifications for the relevant Goods;
(c) the time frame within which the Supplier estimates that the Goods could be supplied;
(d) the proposed term during which specified services would be provided;
(e) where the Goods are to be supplied;
(f) the price payable for the Goods (if the Quotation specifically states that the price for those Goods is fixed) or a method for calculating that price, and the payment schedule for the Goods;
(g) any amount to be paid in advance on account of any Goods; and
(h) such other items as the Supplier considers relevant for that Quotation;

Site means the place, other than the Supplier’s own premises, at which any Goods are to be delivered;

Supplier means Applied Machinery Australia Pty Ltd ACN 158 413 524 and/or any related body corporate or ultimate holding company (as those terms are defined in the Corporations Act (Cth) 2001) of it;

Terms means these Terms and Conditions of Supply.

Quotation, Ordering and Variation of Goods

2. The Supplier will supply, and the Customer will accept receipt of, the Goods identified in any Agreement in accordance with the terms and conditions in these Terms.

3. The Customer may request one or more variations to the Goods. If requested to do so by the Customer, the Supplier may issue a Quotation for any variation required by the Customer. Subject to clauses 4 and 5, a Quotation will remain open for a maximum of 30 days from the date of issue, or such other period as specified in the Quotation. If the Supplier does not receive an Order in response to that Quotation within that period (or a different period if the Supplier agrees), the Quotation will lapse.

4. The Supplier may withdraw a Quotation at any time prior to the Customer issuing an Order, after which time the Quotation ceases to have effect.

5. Any Quotation is based on the information that was made available to the Supplier at the time of the Quotation. If that information (including the price charged by any supplier or manufacturer of any item forming part of the Goods and the relevant exchange rate) changes or is incorrect or if a change to the Goods is required, the Supplier may vary the Quotation or its pricing for the Goods at any time prior to accepting an Order.

6. If the Customer wishes to order the Goods referred to in a Quotation, it must place an Order in writing with the Supplier for those Goods before the Quotation period expires or is withdrawn. The Customer acknowledges and agrees:

(a) any such Order incorporates the terms of the Quotation and these Terms, and constitutes an offer that may be accepted or rejected by the Supplier; and
(b) prior to accepting or rejecting any such Order, the Supplier may conduct an assessment of risk relating to the Order and the Customer must co-operate with any reasonable request made by the Supplier for that purpose.

7. Unless otherwise agreed in writing by the Supplier:

(a) these Terms apply exclusively to every Quotation, Order and Agreement and cannot be varied or replaced by any other terms and conditions proposed or submitted by the Customer or any third party; and
(b) the Terms may include additional terms in the Quotation that are not inconsistent with the Terms.

8. If the Supplier agrees to supply after receipt of the Order, it will notify the Customer in writing, and the parties will be bound by that Accepted Order and these Terms will apply to the supply of Goods under it. The Agreement between the Supplier and the Customer for the provision of those Goods will consist of the following documents:

(a) these Terms;
(b) the Quotation;
(c) the Supplier’s notification of its acceptance of the Customer’s Order; and
(d) the Customer’s Order (specifically excluding any terms or conditions in the Order that are inconsistent with these Terms and the Quotation).

In the event of an inconsistency between those documents referred to above, the document appearing earlier will prevail to the extent of the inconsistency.

9. Unless otherwise agreed in writing by the Supplier, any terms or conditions issued, proposed or submitted by the Customer that are inconsistent with the Terms:

(a) have no effect, and will not affect any agreement between the Supplier and the Customer referred to in in clause 8 even if the Supplier has had notice of those terms or conditions; and
(b) do not constitute an offer or a counter-offer by the Customer.

10. Without limiting the generality of clause 8, these Terms will also apply in any instance where the Customer accepts delivery of Goods from or collects Goods from the Supplier unless the parties agree in writing to the contrary.

11. To the maximum extent permitted at law, and subject to these Terms, the Supplier will only be responsible for those Goods specifically identified as the Supplier’s responsibility in the Agreement, or as otherwise agreed in writing by the parties from time to time.

12. Without prejudice to its rights under these Terms or generally, if the Customer fails to comply with any of these Terms or any Agreement, the Supplier may suspend or cease supply of Goods at any time.

Delivery

13 Unless otherwise agreed in writing:

(a) the Supplier shall arrange for transport of the Goods to the Customer’s specified delivery point;
(b) the Supplier is entitled to charge a delivery fee for such transport. The delivery fee shall be due and payable by the Supplier on the date for payment of the Price;
(c) the Supplier is responsible for unloading the Goods from the transport vehicle; or
(d) if no delivery point has been specified by the Customer, the Customer shall collect the Goods from the Supplier’s premises within seven (7) days of the Supplier notifying the Customer that the Goods are ready for collection.

14 If the Supplier notifies the Customer that the Goods are ready for transport or collection and the Customer requests the Supplier to hold the Goods, or where clause 13(d) applies and the Customer does not collect the Goods within seven (7) days of notification by the Supplier that the Goods are ready for collection then:

(a) the Supplier may hold the Goods;
(b) unless specified to the contrary by the Supplier, delivery shall be deemed to have occurred and the Goods shall be at the Customer’s risk from the time of the Customer’s request or failure to collect as per 13(d);
(c) where storage fees or a rate at which storage fees will be charged are disclosed in a Quotation, the Supplier shall be entitled to charge storage fees in respect of the Goods so stored, and such storage fees shall be due and payable by the Customer on the date for payment of the Price.

15 If the Supplier has agreed in writing to install the Goods, then unless otherwise agreed in writing:

(a) the Supplier shall arrange for the installation of the Goods;
(b) the Supplier is entitled to charge a fee for the installation. The installation fee shall be due and payable by the Customer upon installation occurring.

16 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these Terms.

17 The Supplier may deliver the Goods by separate instalments. Unless otherwise agreed in writing, each separate instalment shall be invoiced and paid in accordance with the provisions in these Terms.

18 The Supplier must use reasonable efforts to comply with any estimated delivery dates or times, however any dates or times for delivery as provided in an Agreement are estimates only, and a failure to comply with a time for delivery does not constitute a breach of these Terms or any Agreement.

19 The Supplier may extend the estimated delivery date by giving notice to with the Customer as soon as is reasonably practicable.

20 In the event of any delay in delivery of the Goods, to the maximum extent permitted by law:

(a) the Supplier shall not be liable to any claims by the Customer for any loss, damage or expense suffered or incurred by the Customer including any indirect, punitive, special, incidental or consequential damage in connection with or arising out of such delay or failure to supply the Goods (including for loss of profits, use, data, or other economic advantage), regardless of how it arises, whether for breach of these Terms or the Agreement or in tort, and even if a party has been previously advised of the possibility of such damage; and
(b) the delay or failure shall not:
- (i) relieve the Customer of its obligation to pay the Purchase Price; or
- (ii) permit the Customer to rescind the Contract and/or reject the Goods.

21 If the Supplier is required to provide any Goods at the Site:

(a) the Supplier may conduct an assessment of risk relating to that requirement and the Customer must co-operate with any reasonable request made by the Supplier for that purpose; and
(b) the Customer must at its own expense:
- (i) prepare the Site;
- (ii) make all arrangements necessary to take delivery or receive of the Goods whenever they are tendered for delivery;
- (iii) ensure that the Supplier has access to the Site, prior to delivery of the Goods;
- (iv) ensure that the Supplier has access to adequate electric supply, electrical and mechanical fittings and siting conditions at the Site;
- (v) procure and maintain all goods, services, equipment and hardware necessary to take delivery or receive the Goods, including those reasonably specified or described in notice by the Supplier to the Customer; and
- (vi) provide all reasonable assistance and facilities, including without limitation, access to office facilities, computer and information technology systems and assistance though liaison with the necessary officers and employees of the Customer.

22 For the purpose of clause 21, the Customer must comply with any reasonable directions or specifications issued by the Supplier, and the Supplier shall ensure its employees and contractors comply with all reasonable requirements for attending the Site notified to them by the Customer from time to time.

23 If the delivery or installation of any Goods is delayed for any reason caused by the Customer, including inadequate preparation of or access to the Site or a failure by the Customer to comply with clause 21 or clause 22, the time for delivery or installation will be extended and the Supplier may charge the Customer for, and the Customer must pay to the Supplier on demand, all costs and expenses the Supplier reasonably incurs as a result of the delay.

Goods – Risk and Title

24 Unless otherwise specified in a Quotation or otherwise agreed in writing (including by way of Incoterm), all risk for the Goods passes to the Customer on delivery of the Goods to the Customer or collection of the Goods by the Customer.

25 If:

(a) any of the Goods are damaged or destroyed following delivery or collection but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions 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; and
(b) the supply is made pursuant to an Incoterm that requires the Supplier to insure the Goods, and the Goods are insured under the Supplier’s existing Marine Insurance policy, then to the maximum extent permitted by law the Customer acknowledges and agrees that the Goods are insured only to the extent provided under such Marine Insurance Policy.

26 The Supplier and the Customer agree that ownership of such Goods shall not pass until:

(a) the Customer has paid the Supplier for the Goods; and
(b) the Customer has met all of its other obligations to the Supplier.

27 Until ownership of the Goods passes to the Customer in accordance with clause 26:

(a) the Customer is only a bailee of the goods and must return the goods to the Supplier on request;
(b) the Customer holds the benefit of the Customer’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) the Customer must not sell, dispose, or otherwise part with possession of the goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
(d) the Customer should not convert or process the goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;
(e) the Customer irrevocably authorizes the Supplier to enter any premises where the Supplier believes the goods are kept and recover possession of the goods;
(f) the Supplier may recover possession of any goods in transit whether or not delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the goods nor grant nor otherwise give away any interest in the goods while they remain the property of the Supplier;
(h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

PPSA

28 For the purposes of the PPSA, terms used in clauses 29 to 35 that are defined in the PPSA have the same meaning as in the PPSA.

29 The Customer acknowledges and agrees that:

(a) these Terms constitute a security agreement and the Supplier has a Purchase money Security Interest in all present and future Goods supplied by the Supplier to the Customer and the proceeds of those Goods;
(b) the security interest is a continuing security interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(c) the security interest arising under this clause attaches to Goods when the Goods are collected or dispatched from the Supplier’s premises and not at any later time;
(d) the Supplier may allocate amounts received from the Customer in any manner the Supplier determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by the Supplier; and
(e) for the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.

30 The Customer undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to:
- (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
- (ii) register any other document required to be registered by the PPSA; or
- (iii) correct a defect in a statement referred to in clause 30(a)(i) or 30(a)(ii);
(b) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Supplier.

31 The Supplier and the Customer agree that sections 96 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

32 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) and 135 of the PPSA.

33 The Supplier and the Customer agree to contract out of and nothing in the provisions of sections 129, 142 and 143 of the PPSA will apply to these Terms.

34 Unless otherwise agreed to in writing by the Supplier, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

35 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.

Intellectual Property Rights

36 Except to the extent otherwise provided in an Agreement or otherwise agreed in writing by the Supplier, all intellectual property rights in or relating to any Goods (including, without limitation, any manuals, software forming part of the Goods, documentation, papers, training materials, consultation materials and documents, information or any other thing) provided to the Customer by or on behalf of the Supplier will remain the property of the

Supplier or, where applicable, its licensors or suppliers (“Intellectual Property”).

37 Upon payment in full for all of the Goods provided pursuant to an Agreement, the Supplier grants the Customer a non-exclusive, royalty free, perpetual, irrevocable and worldwide licence to use the Intellectual Property in the Goods solely for the Customer’s own internal business purposes.

38 The Customer acknowledges that there is no transfer of title or ownership to the Customer of any Intellectual Property or pursuant to these Terms or any Agreement.

Invoicing and Payment

39 Unless otherwise specified by the Supplier:

(a) all Prices specified in an Agreement exclude any tax, including any GST, duty or impost levied in respect of the Goods (other than any tax assessable on the Supplier’s own income); and
(b) the Customer must pay any such GST, duty or impost levied in respect of the Goods in addition to the Price and any other amounts specified in an Agreement.

40 The Customer acknowledges and agrees:

(a) where the Price for Goods is specified as fixed in the Agreement, it will be as specified in the Agreement;
(b) where the Price for Goods is not specified in the Agreement, the Price for the Goods will be as set out in the Supplier’s list of prices current as at the date of delivery; and
(c) where there is any change to the costs incurred by the Supplier in relation to the Goods or provision of services related to those Goods (including but not limited to delivery or freight), the Supplier may vary the Price to take account of any such change by notifying the Customer and providing the Customer with evidence of that change, and the Customer must not unreasonably refuse to agree to such variation in Price.

41 Unless otherwise specified in the Quotation or Agreement, or varied in accordance with these Terms, if a price is specified as fixed in a Quotation it will be fixed for the period specified in the Quotation only.

42 The Price for the Goods must be paid by the Customer to the Supplier as set out in an Agreement and which may be:

(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments or progress payments in accordance with the Supplier’s payment schedule;
(d) in the absence of any express terms nominated by the Supplier, on receipt of any invoice given to the Customer by the Supplier.

43 Time for payment for the Goods is of the essence.

44 Unless otherwise set out an Agreement, payment may be made by cash, cheque, bank cheque, electronic funds transfer into the Supplier’s nominated bank account, credit card (plus a surcharge of up to one percent (1%) of the Price), or by any other method as agreed to between the Supplier and the Customer.

45 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 recognized.

46 Invoices will be expressed in Australian dollars and the Customer must pay the Supplier in Australian Dollars unless agreed in writing to the contrary by the parties.

47 If the Supplier does not receive payment by the due date, then without prejudice to its rights under these Terms or generally:

(a) the Customer is liable to pay the Supplier interest on all amounts owed to the Supplier at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 (Vic.); and
(b) the Customer is liable for, and will indemnify the Supplier in respect of, all reasonable expenses (including expenses such as debt collection commission and bank charges) and legal costs (on an indemnity basis) incurred by the Supplier in the enforcement of the Customer’s obligations, and the recovery of monies or other things due from the Customer to the Supplier; and
(c) the Supplier may, by written notice to the Customer, suspend or cease supply of Goods, whether under a particular Agreement or generally until the Customer has paid all outstanding amounts.

48 If, in the reasonable opinion of the Supplier, the Customer has failed to make or unreasonably delayed any payment to the Supplier, the Supplier may revoke or withdraw any previous approval to extend credit to the Customer, and may require the Customer to make a payment on account of, or in anticipation of, fees and other amounts to be invoiced pursuant to any Agreement. In that event, the Supplier may by written notice to the Customer, suspend or cease supply of Goods, whether under a particular Agreement or generally until the Customer has paid all outstanding amounts.

49 The Customer agrees to make payment for any invoices whether Goods are used by the Customer or not.

50 The Customer shall not be entitled to set off against, or deduct from the invoiced price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.

51 The Supplier is entitled to set-off against any money owing to the Customer amounts owed to the Supplier by the Customer on any account whatsoever.

Warranties and liability

52 Subject to clause 54(a), the Supplier warrants that:

(a) the Supplier has the right to supply the Goods under these Terms and the Agreement;
(b) where services are provided, they will be provided with due skill and care;
(c) it is entitled to execute, deliver and perform its obligations under any Agreement and all necessary corporate and other action has been taken to authorise that execution, delivery and performance; and
(d) it holds all licenses required or necessary to lawfully comply with any Agreement.

53 The Customer acknowledges that, other than as expressly set out in writing in an Agreement:

(a) it has made and relied on its own enquires in respect of all matters relating to Goods or an Agreement and their suitability for the Customer’s purposes;
(b) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information, representation, warranty, condition or statement made or provided by or on behalf of the Supplier or any other party; and
(c) it has not made known, either expressly or by implication, to the Supplier any purpose for which it requires the Goods and it has the sole responsibility of satisfying itself that the Goods are suitable for the use of the Customer.

54 Except as these Terms specifically state, or as contained in any express warranty provided in relation to the Goods:

(a) the Agreement does not include by implication any other term condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or any contractual remedy for their failure;
(b) the Supplier does not represent or warrant that the Goods or their use will meet the Customer’s requirements; and
(c) the Supplier makes no representation or warranty as the quality or suitability of the Goods.

55 Unless otherwise provided in these Terms, and to the maximum extent permitted at law, in no event will either party be liable to the other party or to any third party for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of these Terms, an Agreement or the supply of Goods (including for loss of profits, use, data, or other economic advantage), regardless of how it arises, whether for breach of these Terms or the Agreement or in tort, and even if a party has been previously advised of the possibility of such damage.

56 Where the Customer is a consumer, nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against the Supplier for a failure of a statutory guarantee under the ACL.

To the maximum extent permitted at law.

57 To the maximum extent permitted at law:

(a) in no event will the Supplier’s total aggregate liability in respect of all claims arising under or in connection with the supply of Goods or an Agreement exceed the amount paid to the Supplier by the Customer for the Goods or under the Agreement respectively regardless of whether such claims arise out of a single event or a series of events; and
(b) the Customer will not be entitled to exercise any right to reject the Goods or any part thereof because of breach of any condition or warranty unless the Customer gives the Supplier written notice of such rejection or claim within 14 days of the delivery or collection of the Goods or where the Goods are installed by the Supplier, within 14 days of installation.

58 In the case of the supply by the Supplier of used or second-hand Goods, the Customer acknowledges that it has had full opportunity to inspect the such Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that the Supplier has agreed to provide the Customer with the used or second-hand Goods and calculated the Price of the second-hand Goods in reliance of this clause.

59 Nothing in clauses 52 to 58 is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State of Federal legislation applicable to the sale of goods or supply of services that cannot be excluded, restricted or modified.

60 To the maximum extent permitted by law, the Supplier’s liability for breach of any condition of warranty is limited, at the Supplier’s option, to:

(a) in the case of Goods, the repair or replacement of those Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods; and
(b) in the case of services, supplying those services again, or paying the cost of having the services supplied again.

Termination

61 Either party may terminate an Agreement by written notice to the other party if the other party:

(a) breaches an Agreement, including these Terms, if:
- (i) the breach is a material breach and is not capable of remedy; or
- (ii) the breach is capable of remedy and the other party does not remedy that breach within 14 days of written notice by the terminating party; or
(b) subject to any applicable statutory stay of proceedings, becomes subject to an Insolvency Event;
(c) being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or
(d) ceases or threatens to cease conducting its business in the normal manner.

62 If the Supplier gives the Customer a notice under clause 61 then, without limiting the Supplier’s rights in respect of that termination:

(a) all sums then outstanding will become immediately due and payable to the Supplier;
(b) the Supplier may, in addition to terminating these Terms or Agreements:
- (i) repossess any Goods in the Customer’s possession or control for which payment has not been made in full;
- (ii) retain any moneys paid by or on behalf of the Customer to cover payments not yet made by the Customer;
- (iii) recover from the Customer (and the Customer shall pay the Supplier) an amount calculated in accordance with clause 64;
- (iv) be regarded as discharged from any further obligations under the relevant Agreement or Agreements; and
- (v) pursue any additional or alternative remedies provided by law.

63 Any moneys paid or payable to the Supplier pursuant to these Terms or an Agreement are not refundable on termination of any Agreement or Agreements unless they relate to an overpayment of Goods not received by the Customer following a termination by the Customer pursuant to clause 61 in which case they must be immediately paid by the Supplier to the Customer.

64 If an Agreement is terminated by the Supplier pursuant to clause 61 or if the Customer wrongfully cancels an Order or repudiates an Agreement and such repudiation is accepted by the Supplier, the Customer shall, without limiting any other rights at law of the Supplier, pay damages to the Supplier which may as a minimum include:

(a) any loss incurred by the Supplier on returning Goods to the person which supplied the goods to the Supplier;
(b) any costs, charges, fees, losses, penalties, interest and claims for which the Supplier is liable to pay to the person which supplied the Goods to the Supplier due to non-payment or late payment to that person;
(c) any loss incurred by the Supplier on re-sale of the Goods;
(d) storage costs;
(e) insurance costs;
(f) transport, shipping and delivery costs;
(g) charges for services which the Supplier would otherwise have been expected to have received from the Customer;
(h) any fees and charges for Goods supplied by or on behalf of the Supplier for which the Supplier has not previously rendered an invoice; and
- (i) interest on such amounts at at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 (Vic.), and the Supplier will be entitled to retain any deposit paid by the Customer to the Supplier. The Customer acknowledges and agrees that these amounts do not constitute a penalty but represent reasonable and genuine pre-estimates of the losses that the Supplier may incur from such termination, cancellation or repudiation.

65 Termination or expiry of any Agreement or Agreements is without prejudice to any rights or liabilities which have accrued prior to termination.

Force Majeure

66 Neither party will be liable to the other or to any third party for any non-performance or delay in the performance of its obligations under an Agreement, if a Force Majeure Event causes the non-performance or delay. In no event will this provision affect Customer’s obligation to make any payments to the Supplier except in respect of Goods that the Supplier is unable to provide, until they can be provided.

67 If a Force Majeure Event delays or prevents a party from performing its obligations under an Agreement for a period exceeding 60 days, either party may immediately terminate that Agreement by written notice to the other party.

Privacy Act 1988 (Privacy Act)

68 To enable the Supplier to assess any application by the Customer for credit, the Customer authorizes the Supplier to:

(a) obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Customer and any guarantors pursuant to Section 18K(1) of the Privacy Act;
(b) obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities, and
(c) give to a credit reporting agency information including identity particulars and application details.

69 In accordance with section 18N(1) of the Privacy Act the Customer authorizes the Supplier to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.

70 The Customer understands that information can be used for the purposes of assessing its application for credit (section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.

Engagement not Exclusive

71 The Supplier is providing Goods to the Customer on a non-exclusive basis and may provide goods or services of the same or a similar nature as the Goods to any other party.

General

72 The parties agree to do all acts and things and execute all documents necessary in order to give full and complete effect to the provisions of these Terms or an Agreement or to enable each other to observe and perform their obligations and comply with these

Terms or an Agreement.

73 These Terms and any Agreement are governed by and will be interpreted according to the laws of Victoria, and the Supplier and the Customer consent and submit to the non- exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and courts entitled to hear appeals from those courts.

74 These Terms and the terms of any Agreement may only be amended or varied by written agreement of the parties.

75 The Customer may not assign any of its rights or obligations under these Terms or any Agreement without the Supplier’s prior written consent.

76 The Supplier may arrange for subcontractors to perform any of the Supplier’s obligations under these Terms or any Agreement.

77 If any provision of these Terms or an Agreement is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the provision (or where possible, the offending part) is to be severed from this these Terms of an Agreement without affecting the enforceability, validity or legality of the remaining provisions which will continue in full force and effect.

78 A right created by these Terms or an Agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.

79 Any notice by one party to the other party under these Terms or an Agreement:

(a) must be in legible writing and in English;
(b) may be left or posted by prepaid post to the address of the addressee or sent to the addressee’s facsimile number (if any) as specified in any Agreement, or if the addressee notifies another address or facsimile number for receipt of documents then at or to the address or facsimile number; and
(c) is deemed as being received by the addressee:
- (i) if hand delivered, when delivered to the addressee;
- (ii) if posted, 3 Business Days from and including the date of postage to the addressee; or
- (iii) if sent by facsimile (whether or not legibly received) and the facsimile machine of the sender generates a report showing the total number of pages of the facsimile transmitted to the addressee, but (except in the case of a facsimile transmission) if the delivery or receipt is on a day which is not a Business Day or is after 5.00 pm (addressee’s time) then it is regarded as received at 9.00 am on the following Business Day.
(d) In this clause “Business Day” means a day on which banks are open for business in Melbourne, Victoria, excluding Saturdays, Sundays and public holidays;

80 In these Terms, unless the context otherwise requires:

(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
(d) “including” and similar expressions are not words of limitation;
(e) a reference to “in writing” shall include communication by email;
(f) a reference to a person’s rights includes that person’s right, power, remedy, privilege or authority;
(g) a reference to a thing includes the whole of and part of that thing;
(h) a reference to a group of persons means the group as a whole and each person individually;
(i) a reference to persons include corporations and bodies;
(j) a reference to a party includes that party’s successors, legal personal representatives and permitted assigns;
(k) a reference to a document or agreement includes all amendments or supplements to, or replacements or novations of, that document or agreement;
(l) a reference to a clause, party, schedule or annexure is a reference to a clause of, and a party, schedule and annexure to these Terms and a reference to this agreement includes any schedules and annexures;
(m) a reference to $ is a reference to the currency of Australia; and
(n) headings are for convenience only and do not affect the interpretation of these Terms.