Agreement for Goods and Services
1.
Definitions
1.1 “Agreement” means this document and its terms and obligations together with any
annexures or schedules attached hereto as may exist from time to time.
1.2 “Customer/you/your” means the person/s or entity/s purchasing the Orders as nominated in
any invoice, order, receipt or other agreement and where there is more than one refers to
each jointly and severally
1.3 “Delivery” means (and is taken to occur), unless the contrary is specified in our quote or
other agreement between you and us as may exist from time to time, that is the earlier of
the time:
(a) you or your nominated agent or carrier takes possession of the Order; or
(b) we or our nominated agent or carrier delivers the Order to your nominated
address (even if you are not present at the address at the time of delivery); or
(c) (In respect of a Service (as the context requires)) we attend to undertake the
Service; or
(d) (In respect of Orders being conducted in multiple instalments or stages), of
delivery (Goods) or attendance (Services) of each separate stage with final
Delivery for all the instalments to occur on the delivery or attendance of the
final instalment.
1.4 “Schedule” means the Maintenance Services Schedule document that is annexed to this
Agreement or that may otherwise be displayed on our website, instore or be provided to
you by us which itemises the work we will do, the Price we will charge and the period and
intervals which we will do the work described in the Schedule.
1.5 “Order” means and is used interchangeably, context permitting, with Goods or Services and
any one or all mean any product, labour, service, good, works or other thing supplied by us
at your request from time to time, including an Equipment Hire Arrangement
1.6 “Price” means the amount payable for the Orders as agreed between us and you, subject to
and as otherwise may be provided for in the terms of this Agreement.
1.7 “Tejaben/us/we/our” means Tejaben Pty Ltd ACN together with if applicable its successors,
authorised agents, approved subcontractors, employees and lawful assigns.
2.
Acceptance and Application2.1 By placing an Order or by accepting a delivery of an Order you are deemed to have accepted
and be immediately bound by this Agreement.
2.2 This Agreement may only be amended by our prior consent in writing and will prevail to the
extent of any inconsistency with any other document or agreement between the us and you.
2.3 This Agreement unless the contrary is expressed explicitly and in writing by us applies to all
Orders and any other transactions between us and you.
3.
Pricing3.1 The Price is either that:
(a) published by us in the Schedule for the work and for the period described
therein; or
(b) displayed by us instore or online at our website; or
(c) as otherwise agreed, quoted or invoiced by us
and will apply to the Order and supersedes all prior representations or indications of price.
3.2 Although we take all reasonable care to ensure that the information we publish is current,
you irrevocably waive your right to make any claim against us for any error or omission
regarding any displayed pricing information to the extent that it is inconsistent with the price
displayed at the time your order is placed or you receive our invoice or quotation.
3.3 Unless the contrary is expressly stated in writing all Prices published, provided or displayed
by us are inclusive of GST but exclude any delivery or installation fees (if applicable), any
merchant or transaction fees (if applicable) and are subject to additional increases as may
arise from the terms of this Agreement.
3.4 We may allow you to apply certain available discounts, promotions or loyalty programs (if
any) to orders. If you wish to take advantage of a discount, promotion or loyalty program
you must tell us at the time you place the order, or obtain a quote from us and we may
choose to apply the discount completely or partially in our total and absolute discretion and
you hereby irrevocably waive your right to make any claim against us in respect of any
discount, promotion or loyalty program that you do not receive the full or partial benefit of.
3.5 Without limiting the generality of any other provision in this Agreement we reserve the right
to refuse an order or alter the Price (irrespective of whether the Price has been previously
agreed with you) if:
(a) an incorrect Price was given due to a software malfunction; or
(b) an incorrect Price was given due to third party interference (including but not
limited to a hacking event); or
(c) if information provided by you is inaccurate, incomplete or otherwise not a true
reflection of the circumstances or conditions at the time the Order is to be
performed; or
(d) where additional works are required but not part of the Schedule due to the
discovery of hidden or unidentifiable difficulties (including, but not limited to,
inclement weather, delays as a result of any event outside our control (including
but not limited to hard rock barriers below the surface, iron reinforcing rods in
concrete, or hidden pipes and wiring in walls, etc.) which are only discovered on
commencement of the works; or
(e) any other error, omission or variation which is outside our reasonable control
(including but not limited to increases in cost of materials, third party or
subcontractor costs or labour or stock being unavailable or varied); or
(f) if a variation to the Order which is to be supplied is requested by you.
3.6 Any quotation by us to you will be, subject always to this Agreement, valid for the period
specified in the quote or otherwise for a period of thirty (30) days from the date of the
quote.4.
Payment
4.1 Payment is not deemed to have been made, other than by way of cash, until that form of
payment has been honoured, cleared or recognised and a receipt or similar thing issued by
us is at all times subject to this provision and is not to be construed as a waiver.
4.2 Time for payment for the Order being of the essence, the Price will be payable by you on the
date/s determined by us, which may be:
(a) on Delivery of the Order;
(b) before Delivery of the Order;
(c) by way of instalments in accordance with a payment schedule as may be agreed
between you and us from time to time;
(d) at the times or intervals noted in the Schedule
(e) the date specified on any invoice or other form or agreement as being the date
for payment; or
(f) failing anything to the contrary, the date which is seven (7) days following the
date of any invoice given to you by us.
4.3 Failure to make payment after 14 days from the date the payment falls due pursuant to this
Agreement will, without prejudice to any other remedy or course of action arising under this
Agreement or otherwise available at law, incur the greater of a late fee of $5 per week the
payment is overdue or will accrue interest at a rate of 15% annually and compounded
weekly.
4.4 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card
(Visa and Mastercard only), or by any other method as agreed to between you and us or as
we may direct from time to time.
4.5 If we are unable to authorise or complete your payment via the selected payment method
we will, where the circumstances allow, halt the process of your order until payment has
been made. We will make reasonable efforts to contact you to make alternate payment
arrangements but will not be liable if we do not do so. If you have not made payment or
provided us with an alternative method of payment within 14 days from the date the
payment falls due then we reserve the right to, at our complete discretion, cancel the order
and you will have no claim and hold us blameless if we do so. If we do cancel the order
under this Clause you irrevocably agree to, without limiting any other remedy arising to us
under this Agreement, indemnify us in respect of any costs, loss, (including but not limited to
future anticipated economic loss) or damage consequent from your failure to make
payment.
4.6 Where we are unable to halt the process of your order, (for example where we have already
performed the Service) you will be taken to have not made a payment, be in default under
this Agreement and the provisions herein regarding default will apply.
4.7 We reserve the right to, without further notice to you, engage a third-party payment
provider to securely process credit and debit card payments and store payment details for
account holders. In that event you hereby:
(a) irrevocably consent and authorise us to provide your personal information,
including but not limited to your name, account details and other identifiable
information to our third-party payment provider, for the purpose of processing
your payment; and
(b) covenant that you will comply with any reasonable payment directions from
them as if they were from us; and
(c) irrevocably and to the maximum extent at law, indemnify us and will hold us
blameless in respect of any data breach, malfeasance, misuse of data, mistake or
negligence as may occur or arise from our engagement of or by any third party
payment provider.
4.8 You represent and warrant to us that all payment/card information supplied by you to us or
if applicable our authorised third party payment provider is legitimate, current and owned
by you (or you are authorised to provide it) and no information supplied by you is
fraudulent.
4.9 You covenant to keep all payment/card information up to date and will advise us of any
change in information that is likely to result in a payment being declined or unable to be
processed. In the event that you do not keep your payment information up to date you
hereby acknowledge and agree that we may, at our absolute discretion and without
prejudice to any other remedy or course of action otherwise available at law, charge you a
reasonable fee in respect of the payment failure, treat the payment as never having been
made (or both) and the provisions of this agreement regarding non-payment, debt, default
and recovery will apply.
4.10 We, at our sole discretion, may require a deposit be paid by you at the time you accept our
quotation or place an order. This deposit may form part of the Price but may be nonrefundable if you cancel the Order prior to Delivery or are in default or otherwise fail to
perform an obligation under this Agreement.
4.11 If we need to engage the services of a mercantile agent, debt collector or solicitor for
collection of outstanding sums, and we hereby reserve the right to do so without further
notice to you except such notice as may be prescribed at law and you will be liable for the
costs of debt collection (including professional legal costs (on a full indemnity basis)) and
reasonable management time at hourly rates determined by us at our sole discretion but
acting reasonably and in good faith.
5. Supply of Orders and Variation
5.1 You acknowledge that any specifications, or work performed as part of an Order, or itemised
in the Schedule, (including but not limited to product measurements, dimensions, or
capacity) that is displayed or marketed are intended as guide only and we make no
warranty, to the maximum extent we may do so at law, that any Order is fit for the purpose
intended by you. You agree and acknowledge that you have made your own enquiries and
satisfied yourself as to the suitability of any Order.
5.2 If we are unable to supply you with the Order due to unforeseen circumstances, including
but not limited to sickness, inclement weather, fire, flood, labour troubles, acts of God, or if
one of ordered products is out of stock or no longer available we will accept no responsibility
or liability. We will make reasonable efforts to contact you but are not liable if we do not do
so and we may vary the quotation or Order at our discretion but acting reasonably and in
good faith by:
(a) replacing the unavailable item with another item of a similar value;
(b) replace the unavailable item with an alternative suitable product which may
require an additional charge;
(c) provide a partial refund of the price of the unavailable item;
(d) cancel the entire order and provide a full refund; or
(e) provide another form of compensation that we deem appropriate.
5.3 It is agreed that any time or date given for a delivery is an estimate only and you agree that
you accept Delivery even if it is late and that we are not liable for any loss or damage
incurred or claim arising as a result of the delay.
5.4 In the event that we make reasonable effort, (the reasonableness of which shall be
determined in our sole opinion), but are not able to make Delivery then you agree that we
may, at our sole discretion, charge you a fee to re-deliver or store the items or re-attend (as
is appropriate in the context). If we cannot make Delivery, we will attempt to contact you
but will not be liable if we do not do so. If Delivery or an alternative delivery arrangement
has not been made within the date that is 30 days from the original attempted date of
Delivery then you agree that at our sole discretion but acting reasonably and without
prejudice to another other remedy at law or in this Agreement:
(a) we may where payment has been received treat the Order as abandoned and
deal with them as we see fit and you will have no claim or remedy should we
elect to do so;
(b) we may where payment has not been received do one or any of the following:I.
II.
III. cancel the order;
charge you a reasonable fee in respect of our costs; and
treat you as being in default under this Agreement.
5.5 Where we provide Services the provision of these are subject to all times to an inspection
prior to commencement. In the event that we deem, in our sole opinion, that the pool, its
environs or any other area which is used to access or perform the Service is deemed
unsuitable, defective or unsafe then we will notify you and the Service will be suspended
until such time as:
(a) you rectify the area to our satisfaction; or
(b) where we are to rectify the subject area on your behalf, it is agreed between us
and you as to additional cost (where the additional cost forms a variation
pursuant to Clause 3.5 in this Agreement)
.6. Privacy
6.1 We collect and store your data in in compliance with our Privacy Policy which is available on
request.
7. Personal Properties Securities Act 2009 (Cth) (PPSA)
7.1 You acknowledge that terms of in this Agreement constitute a security agreement for the
purposes of Section 10 of the PPSA which creates a security interest in favour of us in all the
Order previously supplied (if any) and all Order supplied thereafter by us to you to secure
the payment from time to time and of all money owing by you to us.
7.2 You acknowledge and agree:
(a) that by agreeing to these conditions, you irrevocably agree to grant a security
interest (by virtue of the retention to title in clause of this Agreement) to us in
respect of all Order previously supplied (if any) and all Order supplied thereafter
by us to you and any current or hereafter future acquired assets absolutely and
these conditions will apply notwithstanding anything express or implied to the
contrary contained in the any other agreement or document.
(b) you agree that the security interest granted to us is a “purchase money security
interest”, as that term is defined in the PPSA.
7.3 You undertake to:
(a) sign any further documents and provide any further information (which
information you warrant to be complete, accurate and up-to-date in all respects)
which we may reasonably require to enable registration of a financing statement
or financing change statement on the Personal Property Securities Register
(PPSR);
(b) not register a financing change statement as defined in Section 10 of the PPSA
or make a demand to alter the financing statement pursuant to section 178 of
the PPSA in respect of the Order without our express prior written consent;
(c) give us not less than 14 days prior written notice of any proposed change in your
name or any other changes in the details (including but not limited to facsimile
number, email address, trading name or business practice);
(d) pay all costs enforcing or attempting to enforce the security interest created by
these conditions including executing subordination agreements; and
(e) do all things necessary including but not limited to promptly executing any
documents to assist us in perfecting our security interest.
7.4 Pursuant to Section 157 of the PPSA, unless otherwise agreed in writing by us, you hereby
waive the right to receive a verification statement in respect of any financing statement or
financing change statement relating to the security interest.
7.5 To the maximum extent permitted by law, you waive the your rights under sections 95, 96,
125, 121(4), 130 (1)(a), 132(1), 132(3)(d), 132(4), 134(2)(a), 135, 140(2)(f), 142 and 143 of
the PPSA.
7.6 For the purposes of section 125 of the PPSA you agree that a “reasonable period” will not
mean less than 12 months regardless of the circumstances.
7.7 All terms used in this Clause 6, unless otherwise provided, have the same meaning as given
to those terms in the PPSA.
8.
Risk8.1 Risk of damage to, or loss of the Order passes to you on Delivery and it is your responsibility
to insure the Order on or before Delivery.
8.2 If any of the Order is damaged or destroyed following Delivery but prior to ownership
passing to you, we are entitled to receive all insurance proceeds payable. The production of
this Agreement is agreed by you to be sufficient evidence of our right to receive the
insurance proceeds and you irrevocably authorise us to be your attorney for the purpose of
completing such insurance claim.
8.3 If the you request us to leave an Order outside our premises for collection or to Deliver the
Order to an unattended location then you agree that the Order will be left at your sole risk
and you will make no claim on us.
9. Access and Customer Responsibilities
9.1 Our Orders are subject to your continuing responsibility to provide, in our sole opinion, safe
appropriate and reasonably obstruction free access to the work area. You agree that safe,
appropriate and reasonably obstruction free access means without limitation that:
(a) access cards or keys to be provided or access to the work area is physically
granted 30 minutes prior to job commencement;
(b) pets are secured away from the work are;
(c) effective and regular pest control in relevant work areas (around pumps, etc) is
undertaken;
(d) the work area is not physically obstructed or overgrown (behind overgrown
bushes, on a steep gradient etc);
(e) loose objects or debris that can be considered a tripping hazard are removed;
and
(f) no activity must beach be likely to breach our Occupational Health and Safety
(OH&S) policies
9.2 You acknowledge that our OH&S policies will apply to any work we do, and these policies
include that:
(a) we will not climb on any roofs, scale any fences or do any work for which a
prudent person would wear a safety harness; and
(b) we will not be required to do any electrical or other licensed trade work if we do
not hold the relevant qualifications at the time of attendance and if you do not
inform us that such work will be required or likely to be required.
9.3 In the event that you, in our sole opinion but acting reasonably do not provide safe,
appropriate or reasonably obstruction free access, we may at our absolute discretion charge
you a no access fee of $20 in each instance and may refuse to perform the Order, without
default or penalty, until the issue is rectified to our sole satisfaction, but acting reasonably.
9.4 It is your responsibility under this Agreement, (and you hereby covenant to do so), to keep
all contact details, including but not limited to addresses and telephone numbers up to date,
and you indemnify us to the maximum extent at law with respect to any loss, cost or other
amount, of yours, ours or a third party caused by your failure to keep the details up to date.
10. Defects, Returns, Australian Consumer Law (ACL) and General Indemnities
10.1 Under applicable State, and Commonwealth Law (together referred to as the ACL) certain
statutory implied guarantees and warranties may be implied into this Agreement and the
provision any Goods or Services (Non-Excluded Guarantees).
10.2 Except as expressly set out in this Agreement or in respect of the Non-Excluded Guarantees,
we make no warranties or other representations including but not limited to the quality or
suitability of the Order and our liability in respect of these warranties is limited to the fullest
extent allowable by law.
10.3 It is acknowledged that nothing in this Agreement purports to modify or exclude the NonExcluded Guarantees.
10.4 You must inspect the Order on delivery and must within seven (7) days of delivery notify us
in writing of any evident defect/damage, shortage in quantity, or failure to comply with the
description or quote. You must notify any other alleged defect in the Order as soon as
reasonably possible after any such defect becomes evident. Upon such notification you must
allow us to, as much as is practical, inspect the Order.
10.5 Where you are a consumer within the meaning of the ACL our liability is limited to the extent
permitted by the ACL and does not extend further. Notwithstanding anything contained in
this Clause if we are required to accept a return under the ACL then we will only accept a
return on the conditions imposed by the ACL.
10.6 Where we are required to replace and Order under this Agreement or the ACL, but we are
unable to do so due to no fault of our own, you agree we may refund any money you have
paid for the Order.
10.7 If you are not a consumer within the meaning of the ACL, our liability for any defect or
damage in the Order is:
(a) limited to the value of any express warranty or warranty card provided to you by
us;
(b) limited to any warranty to which we are entitled, if we did not manufacture the
Order; and
(c) otherwise negated absolutely.
10.8 Subject to this Agreement, returns will only be accepted provided that:
(a) you have complied with the provisions of the Agreement;
(b) we agree that the Order is defective;
(c) the defective items are returned within a reasonable time at your cost (if that
cost is not significant); and
(d) the defective items are returned in as close a condition to that in which they
were delivered as is possible.
10.9 We may in our absolute discretion accept non-defective Orders for return in which case we
may at our discretion require the you to pay handling fees of up to twenty percent (20%) of
the value of the returned Order plus any freight costs.
10.10 (Context permitting) If you are not satisfied with a Service performed by us and you notify us
within 3 days of the Service being performed, we may after due investigation and at our
absolute discretion repeat the service at no additional cost.
10.11 Notwithstanding anything to the contrary in this Agreement but subject to the ACL, we shall
not be liable for any defect or damage which may be caused or partly caused by or arise as a
result of:
(a) you failing to properly maintain or store the Order;
(b) you using the Order for any purpose other than that for which it was designed;
(c) you continuing the use of any Order after any defect became apparent or should
have become apparent to a reasonably prudent operator or user;
(d) you fail to follow any instructions or guidelines provided by us or the
manufacturer; and
(e) fair wear and tear, any accident, act of God, or other force majeure
10.12 Further and again notwithstanding anything to the contrary in this Agreement but subject to
the ACL and otherwise to the maximum extent permitted by law, we exclude, on our own
behalf and that of any supplier all liability for all claims, expenses, losses, damages and costs
made against or incurred or suffered by you directly or indirectly (including without
limitation lost costs and profits) arising out of:
(a) your use or misuse of any Goods supplied; and/or
(b) our negligence or the negligence of any supplier in the supply of any Order to
you.
10.13 In any event, we will not be liable and you indemnify us against any claim, whether direct or
indirect, for loss of profits or consequential damages and our liability to you for loss or
damage of any kind (including loss or damage caused by negligence or a breach by us of the
terms of this Agreement) is reduced to the extent that you caused or contributed to that loss
or damage, is limited in damages to an amount that does not exceed the Price of the Order
and/or otherwise to the minimum required at law.
10.14 In the case of second hand items, unless you are consumer under the ACL, you acknowledge
and agree that you have had full opportunity to inspect the second hand items prior to
delivery and you accept them with all faults and that to the extent permitted by law no
warranty is given by us as to the quality or suitability for any purpose and any implied
warranty, statutory or otherwise, is expressly excluded. You further acknowledge and agree
that we have agreed to provide you with the second-hand items and calculated the Price of
the second-hand item in reliance of this clause.
10.15 Subject to the ACL or except as otherwise allowable at law you are not entitled to deduct
from the Price, or set-off against, any monies or other amounts owed or claimed to be owed
to you by us nor to withhold payment of any kind because of any dispute with us and should
you do so you will be in default under this Agreement.
11.
Title11.1 It is agreed by you and us that ownership of the Order will not pass until the later of:
(a) when you have paid all amounts owing to us; and
(b) you have met all your other obligations to us pursuant to this Agreement or
otherwise at law.
11.2 It is further agreed that until ownership of the Order passes to you in accordance with this
Agreement that:
(a) you are only a fiduciary bailee of any Order and must return the Order to us as
soon as practical on our request;
(b) you hold the benefit of any insurance in respect of the Order on trust for us and
must pay to us without demand and immediately the proceeds of any insurance
in the event of the Order being lost, damaged or destroyed;
(c) If you fail to pay for the Order as required under this Agreement, then
notwithstanding any other right or remedy arising to us at law or otherwise in
this Agreement you irrevocably authorise us to enter your premises (or any
other premises under your control if the Order is stored at such premises) and
use reasonable force to retake possession of the Order without liability for
trespass or any resulting damage;
(d) You agree to, in addition to any other remedy at law or indemnity in this
Agreement, indemnify us and hold us harmless for all claims or causes of action
which may arise by us retaking possession of the Order under this Agreement.
Further and again in addition to any other remedy, payment or entitlement
arising to us by virtue of this Agreement or at law agree to pay us our reasonable
costs of retaking possession; and
(e) Where we retake possession of the Order and notwithstanding anything to the
contrary in this Agreement, we will be entitled but not obligated to resell the
whole or any part of the Order pursuant to the provisions of this clause.
12. Loan Hire
Agreement12.1 Where we have entered into a loan hire agreement with you, we will provide you in good
repair and working order the hired Goods, provided that you, in addition and subject to the
terms elsewhere in this Agreement, must:
(a) not sell, dispose, or otherwise part with possession of the hired Goods other
than with our prior consent, where such consent may be granted or withheld
wholly or partially and with such conditions as we deem reasonable. If you do
sell, dispose or part with possession of the Goods without our consent then you
irrevocably covenant to hold the proceeds of any such disposal on trust for us
and must pay or deliver the proceeds to us on demand and you indemnify us
absolutely for any loss or cost occasioned by your disposal;
(b) not convert or use the Goods, (including not intermixing them with other items),
without our prior consent and then only in the usual course of their
manufactured purpose. If you do convert or use the Goods without our prior
consent then you hold the resulting product on trust for our sole benefit and
you must sell, dispose of, return or pay us the value of the resulting product as
we may direct in our absolute discretion;
(c) 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 us;
(d) use the Goods only for their manufactured purpose, in strict accordance with
the manufacturer’s directions or any instructions we give you and you otherwise
use the Goods at your own risk and indemnify us to the maximum extent at law
in respect of any injury, loss, death, damage, cost or claim occasioned by their
use; and
(e) maintain and keep the Goods in good and working order, following the
manufacturers recommendations and must promptly at the expiration date or
other ending date of the loan hire agreement period, promptly return the Goods
to us, as we may direct from time to time, whole, complete and in full working
order, and in a condition not less than that in which they were first provided to
you. Fair wear and tear excepted.
12.2 If you fail to meet an obligation under this Agreement, including but not limited to failing to
make a payment, you irrevocably authorises us to enter any premises where we believe the
Order are kept and recover possession of the Order and you hereby agree to indemnify us
and hold us blameless against all claims or causes of action which may arise by our retaking
possession and you agree to pay our costs incidental to retaking possession. We then will be
entitled to, but are in no way obligated, rehire the repossessed, in part or in full, pursuant to
the provisions of this clause and you shall have no claim.
12.3 You agree that we may commence proceedings to recover the value of the Goods or the
Price of the loan hire agreement notwithstanding that ownership of the Goods has not
passed to you.
12.4 You further irrevocably agree that the hired Goods remain absolutely our property, are
provided to you as a licence personal to use only and that nothing in this Agreement is to be
construed to give rise to you any proprietary interest in the Goods.
12.5 The powers and remedies granted to us in this Clause are in addition to any which may arise
elsewhere under this Agreement and those which we may have otherwise at law.
13.
Our IP13.1 Where we have designed, drawn or developed Goods or Services for you, then any designs,
drawings and documents will remain our intellectual property solely and absolutely and you
hereby irrevocably agree that we may without further fee or cost use for the purposes of
marketing or entry into any competition, any documents, designs, drawings or Goods which
we may have created.
14.
General Default14.1 Without prejudice to any other remedies we may have either elsewhere in this Agreement
or otherwise at law, if, at any time you are in breach of any obligation of this Agreement
(including but not limited to those relating to payment) we may consider you in default and
without being liable to you for any loss or damage suffered by you as a result of the exercise
of this Clause, do any or all of the following:
(a) suspend or terminate in part or in full the supply of the Order to you;
(b) recover as a liquidated debt (such debt amount to include but not be limited to
internal administration fees, legal costs on a solicitor and own client basis, our
default fees, and bank dishonour fees), any and all amounts, where such
amounts become immediately payable by virtue of this Clause, that remain
unpaid or that would have been paid if not for your default; and
(c) claim damages against you in respect of any cost, expense or loss (such to
include but not be limited to loss of future profit or paid to third party inventory
supplier costs).
14.2 Without prejudice to any other remedies at law or any other provision of this Agreement we
shall be entitled to consider you in default if:
(a) any money payable to us becomes overdue, or if in our opinion acting
reasonably you will be unable to make a payment when it falls due;
(b) you become insolvent, convene a meeting with creditors or propose or enter an
arrangement with creditors, or makes an assignment for the benefit of its
creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise), trustee in bankruptcy
or similar person is appointed in respect of you or any asset of yours.
15. Items Left for Repair
15.1 Where any item has been provided to us and left in our possession for repair, modification,
exchange (or for us to perform any other action in relation to the item) and where we have
not received the complete payment of all amounts arising to us you hereby irrevocably
agree and grant to us, until all amounts are paid one or both insofar as it is possible of:
(a) a lien on the item, where such lien will continue despite commencement of any
proceedings or judgement obtained against you; or
(b) the right to retain or sell the item.
15.2 Nothing in this Clause is intended to conflict with, and this Clause is to operate strictly in
accordance with, any legislation applicable to the sale or disposal of uncollected goods and is
in addition to any other remedy or power arising to us under this Agreement.
16. General1
6.1 Our failure to enforce any provision of this Agreement or other forbearance will not be
treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that
provision or any other remedy at law.
16.2 If any provision of this Agreement is found invalid, void, illegal or unenforceable the validity,
existence, legality and enforceability of the remaining provisions shall not be affected,
prejudiced or impaired.
16.3 Where an obligation by you under this Agreement has an aspect wherein it must be
completed on or before a certain time or date time is of the essence insofar as it relates to
that obligation.
16.4 This Agreement and any subsequent or associated contract or agreement to which they
apply shall be governed by the laws of Queensland.
16.5 We may license or sub-contract all or any part of our rights and obligations without seeking
further consent from you and where your consent is required at law you hereby irrevocably
provide that consent.
16.6 You agree that the right to amend the terms of this Agreement from time to time is reserved
by us and if we make a change to this Agreement, then that change will take effect from the
date on which we notify you of the change. You further agree that you will be taken to have
accepted such a change if you make any further Order with us subsequent to the date of
that notice.
16.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike,
lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of
either party (force majeure event) and in the event that such a thing delays the
performance of an obligation under this Agreement by a delay of more than 60 days from
the date on which it would otherwise have fallen due, then notwithstanding anything to the
contrary in this Agreement, either party may, by way of notice delivered upon the other,
terminate this Agreement and the matter will then be at an end, provided that any prior
breach by you occurring before the force majeure event, will not merge.
16.8 You hereby warrant that:
(a) you have the power to enter into this Agreement;
(b) you have obtained all necessary authorisations to do so;
(c) are not insolvent; and
(d) this Agreement gives rise to valid and binding legal obligations enforceable in action and at law.