GENERAL TERMS OF SUPPLY
We may from time to time agree to supply to you a variety of goods and services (the Goods and/or Services). Irrespective of whether you sign a copy of these Terms, any Goods and Services we agree to supply to you will be supplied on these Terms:
1.1 THE ONLY CONDITIONS AND WARRANTIES BINDING ON US IN RESPECT OF THE STATE, QUALITY OR CONDITION OF THE GOODS AND SERVICES SUPPLIED BY US TO YOU, OR IN RESPECT OF ANY ADVICE, RECOMMENDATIONS OR INFORMATION SUPPLIED BY US (OR OUR EMPLOYEES, SERVANTS OR AGENTS) TO YOU, ARE THOSE IMPOSED AND REQUIRED BY LAW TO BE BINDING ON US (INCLUDING THE COMPETITION AND CONSUMER ACT 2010 (CTH) AND APPLICABLE STATE FAIR TRADING LAWS). ALL OTHER CONDITIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, IN RESPECT OF THE GOODS AND SERVICES WHICH MAY APART FROM THIS CLAUSE BE BINDING ON US, ARE HEREBY EXPRESSLY EXCLUDED AND NEGATED.
2.1 TO THE FULLEST EXTENT PERMITTED BY LAW, OUR LIABILITY (IF ANY) ARISING FROM A BREACH OF ANY APPLICABLE CONDITIONS OR WARRANTIES SHALL, AT OUR OPTION, BE LIMITED TO, AND COMPLETELY DISCHARGED BY, IN THE CASE OF GOODS, EITHER THE SUPPLY BY US OF EQUIVALENT GOODS OR THE REPAIR OR REPLACEMENT BY US OF THE GOODS SUPPLIED TO YOU, AND IN THE CASE OF ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES, THE SUPPLYING OF THE ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES AGAIN.
2.2 EXCEPT TO THE EXTENT ALREADY SET OUT IN THIS CLAUSE, WE WILL HAVE NO LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE OR RECKLESSNESS) TO ANY PERSON FOR ANY LOSS OR DAMAGE (CONSEQUENTIAL OR OTHERWISE) SUFFERED OR INCURRED BY ANY PERSON IN RELATION TO ANY GOODS, ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES SUPPLIED BY US (OR ANY OF OUR EMPLOYEES, OFFICERS OR AGENTS). WITHOUT LIMITING THE GENERALITY OF THIS LIMITATION, WE WILL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE RESULTING FROM ANY FAILURE, DEFECT OR DEFICIENCY OF ANY KIND IN ANY GOODS, ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES.
2.3 WE SHALL NOT BE LIABLE FOR ANY LOSS OF PROFIT OR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND.
2.4 ANY VALID CLAIM BY YOU AGAINST US MUST BE PRESENTED IN WRITING TO US WITHIN A REASONABLE TIME, AND IN NO EVENT LONGER THAN 60 DAYS AFTER THE SUPPLY OF THE GOODS OR SERVICE. NO ACTION MAY BE MAINTAINED BY YOU AGAINST US UNLESS A TIMELY WRITTEN CLAIM HAS BEEN GIVEN UNDER THIS CLAUSE, AND UNLESS SUCH ACTION IS COMMENCED WITHIN 9 MONTHS AFTER THE SUPPLY.
3.1 The terms set out in this Clause 3 have priority over any other terms.
3.2 From time to time we may provide Goods and Services (Third Party Products) from third-party manufacturers (the Principals).
3.3 We do not warrant the performance or integrity of any Third Party Products. We merely pass through to you whatever end-user warranty the Principals provide with their Third Party Products.
3.4 We are not responsible for any acts or omissions of the Principals, for any obligations undertaken or representations that they may make, or for any other products or services they may supply to you, either directly or through us.
3.5 We have no control over the intellectual property in the Third Party Products, and therefore do not take any responsibility for any liability arising as a result of the Third Party Products. We do not indemnify you for claims by third parties that may arise as a result of such Third Party Products infringing any intellectual property of any third party. We will pass through to you any indemnity or cover provided by the Principal in respect of the Third Party Products.
3.6 YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY OR OTHER LIABILITY IS AS STATED IN THE PRINCIPAL’S END-USER TERMS AND CONDITIONS.
4.1 Upon Acceptance, you will be bound to purchase the Goods and Services. You may not cancel an order for Goods and Services after Acceptance without our written consent, which we can withhold at our complete discretion.
4.2 If we agree to cancel an order for Goods or Services, you must:
(a) pay to us any expense, cost or loss incurred or suffered by us as a result of the cancellation of the order; and
(b) complete the purchase of any Goods that we have made or purchased as a result of your order, and pay to us our fee for any Services that we have commenced to supply.
5.1 We agree to supply, and you agree to purchase, Goods and Services in the manner and at the times provided in these Terms.
5.2 In providing Goods and Services we will endeavour to meet or exceed the Key Performance Indicators.
5.3 Our Representative may meet with Your Representative on a regular basis to co-ordinate the supply of Goods and Services.
6.1 In the absence of a specific delivery charge, we will charge our usual fees for the delivery of Goods.
6.2 The delivery times made known to you are estimates only. We will use reasonable endeavours to meet the proposed delivery times. However, we will not be liable to you for any loss you suffer as a result of any delay in delivery caused by any reason, including our negligence.
6.3 Delivery of Goods shall be ex-our store, and you will pay all freight and insurance costs ex-our store.[A1]
6.4 We will be conclusively presumed to have delivered Goods in accordance with these Terms if the Goods are delivered to your carrier ex-our store, or the consignment address, whether or not we obtain a receipt or signed delivery docket for the Goods.
6.5 If delivery cannot be achieved, we may store the Goods or redeliver the Goods to you, and you must pay or indemnify us for all costs and expenses incurred in doing so.
6.6 You shall not be relieved of your obligation to accept and to pay for any part of an order as a result of any extensions, partial consignments or suspensions of delivery.
6.7 We will not be responsible for any loss or damage to Goods in transit. We will render you such reasonable assistance as may be necessary to press claims on any carrier provided you have notified us and the carrier in writing immediately upon the loss or damage being discovered on receipt of the Goods.
6.8 In the event we agree you may return the Goods, the Goods will be at your risk until such time as the Goods reach our place of business. The expense of return will be borne by you.
6.9 You warrant that you will arrange for appropriate insurance for Goods in transit, the cost of which shall be borne by you.
7.1 We are free to provide similar Goods and Services to persons other than you.
7.2 If these Terms are stated to be non-exclusive, you are free to procure similar Goods and Services from persons other than us. Otherwise, you agree to deal with us on an exclusive basis in respect of the acquisition of Goods and Services of the same or a similar nature to the Goods and Services.
8.1 Unless otherwise agreed in writing, we will maintain control over our personnel when providing the Goods and Services. You and your personnel will at all times co-operate with us and our personnel.
8.2 You will not approach our personnel and offer them employment or otherwise engage them to provide Goods and Services of the same or similar nature to the Goods and Services for a period of no less than 12 Months following the termination of these Terms.
8.3 You acknowledge that any of your officers or personnel who contact us in respect of the provision of any goods or services are authorised to do so.
9.1 We may subcontract the provision of some or all of the supply of Goods and Services to other persons.
9.2 We will ensure all subcontractors appointed by us to supply Goods and Services under these Terms are subject to terms similar to these Terms.
9.3 If we have disclosed to you that the supply of some or all of the Goods and Services will be supplied by a particular subcontractor, the Supply Charges that we are entitled to are subject to change due to corresponding changes imposed by our subcontractor.
10.1 You will give us sufficient possession of the Site to enable us to supply the Goods and Services.
10.2 We acknowledge that others may have access to the Site and we agree to co-operate with these people.
11.1 If we are delayed in the supply of Goods and Services we will notify you as soon as we are aware of an actual or expected delay.
11.2 We will give you details of the circumstances giving rise to the delay, the anticipated duration of the delay, and the steps that we intend to take to minimize the delay.
11.3 On receipt of a notice of delay, you will extend the time for the supply of the Goods and Services by a reasonable period if the delay is beyond our reasonable control and we have used (or are using) all reasonable efforts to minimize the delay.
12.1 We will invoice you for the Goods and Services at the rates and in the manner set out in our quote and/or specified in the Schedule to these Terms.
12.2 We may also agree that you will pay us a General Retainer, calculated at the rates and in the manner set out in our quote and/or specified in the Schedule to these Terms.
12.3 In consideration of us agreeing to provide the Goods and Services, you agree to promptly pay our Supply Charges within our Trading Terms.
12.4 If you have not paid our Supply Charges within our Trading Terms, we will immediately cease to provide further goods and services to you until such time as all of our Supply Charges have been fully paid.
12.5 Our Supply Charges are, unless otherwise explicitly stated, quoted exclusive of applicable goods and services tax (GST). GST will, where applicable, be added to our Supply Charges.
12.6 The making of a payment by you will, in the absence of prior written notice to us, constitute approval of the Goods and Services supplied by us.
12.7 If you dispute any Supply Charge made by us, in whole or in part, you shall promptly notify us of the dispute, but shall not delay in paying the Supply Charge within the agreed terms.
12.8 We will give you advance notice of any changes to our Supply Charges. You must pay for the Goods and Services at our current Supply Charges as notified by us.
12.9 Any allegation of overcharging or undercharging must be notified to the other party within 12 Months of the date of invoice.
13.1 All prices quoted by us are subject to acceptance by you of Goods or Services or both as set out in and pursuant to these Terms.
13.2 All prices quoted are based on the following:
(a) labour, material, storage and transport costs and costs incurred in fulfilling statutory requirements (if any); and
(b) supply by us to you during normal business hours (being 9am to 5pm) on a Business Day.
13.3 We reserve the right to alter any quoted prices (whether or not the quote has already been accepted) should there be any change to the costs referred to at Clause 13.2(a) above or if our supply is requested or required by you to occur outside of normal business hours.
Any payments tendered by you will be applied as follows:
(a) first as reimbursement for any collection costs incurred by us;
(b) secondly, to satisfy any other obligation that is not secured;
(c) thirdly, in payment of any interest charged to you in accordance with these Terms;
(d) fourthly, to satisfy an obligation that is secured, but not by a PMSI;
(e) fifthly, to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI; and
(f) sixthly, to satisfy or partly satisfy the oldest portion of our Supply Charges that is secured by a PMSI using funds or proceeds from any source;
or, despite the foregoing, any manner we see fit.
You may not withhold from any payment or offset against any payment due to us any amount in respect of any amount owed by or claim against us.
16.1 If you fail to pay us any amount under this agreement, we may:
(a) immediately terminate the supply/service arrangement between us by providing you with written notice of termination;
(b) terminate any credit facilities extended to you; and
(c) initiate legal action for recovery of any outstanding amounts owed by you and costs incurred (including but not limited to legal costs on a solicitor and own client basis).
16.2 Time is of the essence in respect of the payment of amounts due to us by you.
16.3 You will pay interest on amounts due to us that are over the payment terms at the rate of 2% per Month accrued daily and compounded monthly from the date payment is due to the date on which payment is received by us.
16.4 You will be liable to us for all costs and expenses (including legal costs) incurred by us in the collection of any overdue account, or incurred by us due to any breach or default of these terms, and shall pay the same to us immediately upon notice or demand.
17.1 You must disclose all relevant information to us relating to the terms, conditions and circumstances in which we are to supply the Goods and Services. Without limitation, you will disclose to us:
(a) accurate, complete and sufficient information concerning the Goods and Services to allow us to comply with all laws and regulations concerning the supply of the Goods and Services; and
(b) all foreseeable hazards associated with the supply of the Goods and Services by us.
17.2 You confirm that all information provided by you, including the Reference Materials, are true, accurate and complete in all material respects, and may be relied upon by us in the supply of the Goods and Services.
17.3 You indemnify us against all losses, costs, penalties and expenses which we pay or incur as a result of you failing to fully discharge the obligations in this Clause 16.
18.1 All rights, title and interest in all Goods supplied by us shall remain with us, and does not pass to you, until all monies payable by you to us (including any interest, freight or insurance charges) have been paid in full.
19.1 The PPSA applies to these Terms.
19.2 You must:
(a) Do anything (including making amendments to these Terms or executing a new security document) for the purpose of:
(i) ensuring that a Security Interest created under, or provided for by, these Terms:
(ii) enabling us to prepare and register a financing statement or financing change statement if we in our absolute discretion deem necessary;
(iii) enabling us to exercise any of its powers in connection with any Security Interest created under or provided by these Terms; and
(b) provide any information requested by us in connection with these Terms to enable us to exercise any of our powers or perform our obligations under the PPSA.
19.3 You agree that a Security Interest arises under these Terms in all present and future Goods supplied by us to you and all proceeds of the Goods in the form of a PMSI.
19.4 The Security Interest arising under this Clause 19 attaches to the Goods when the Goods are collected by you or dispatched from our premises and not at any later time.
19.5 You must not change your name (including but not limited to any entity name or trading name), your address or place of incorporation or any other details required to be contained in a financing statement under the PPSA without our prior written consent.
19.6 Except if section 275(7) of the PPSA applies, we and you agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available and you agree not to provide any authorisation for the disclosure of such information.
19.7 You agree that:
(a) We are under no obligation to dispose of or retain any PPSA personal property we seize within a reasonable time under section 125 of the PPSA;
(b) You shall not complain of any damage, cost or inconvenience caused by us in taking apparent possession of any PPSA personal property under section 126 of the PPSA;
(c) Following a default, you have no rights to redeem the PPSA personal property under section 142 of the PPSA; and
(d) You have no rights to reinstate these Terms following a default under section 143 of the PPSA.
19.8 You waive your rights to receive:
(a) A notice of our proposal to remove PPSA personal property which has become an accession under section 95 of the PPSA;
(b) A notice of our proposal to exercise its rights in accordance with land law under section 118(1)(b) of the PPSA;
(c) A notice of our action (such action arising under section 120(2) of the PPSA) in relation to an interest in collateral under section 121(4) of the PPSA;
(d) A notice of our seizure of certain PPSA personal property under section 123(2) of the PPSA;
(e) A notice of our proposal to dispose of any PPSA personal property under section 130 of the PPSA;
(f) Details of the amounts paid to other secured parties in a statement of account provided by us under section 132(3)(d) of the PPSA;
(g) A statement of account under section 132(4) of the PPSA;
(h) A notice of our proposal to retain PPSA personal property under section 135 of the PPSA; and
(i) A copy of, or notice of, any verification statement confirming registration of a financing statement or a financing change statement relating to any Security Interest under, or provided for by these Terms.
19.9 You waive any rights you may have to:
(a) Object to our proposal to purchase PPSA personal property under section 129(2)(b) of the PPSA; and
(b) Object to our proposal to retain PPSA personal property under section 134(2)(b) of the PPSA.
19.10 Anything that is required by us to be done under this Clause 19 shall be done by you at your own expense. You agree to reimburse our costs in connection with any action taken by us under or in connection with this Clause 19.
19.11 The terms attaches, collateral, financing change statement, financing statement, perfected and personal property as used in this Clause 19 have the meaning given to them in the PPSA.
20.1 Subject to Clause 20.2, and unless otherwise agreed in writing by us, all Work Product designed, developed or produced by us in connection with the supply of the Goods and Services, shall be and remain our exclusive property.
20.2 You are entitled to retain one copy of the Work Product for your own use and records, as well as such additional copies as may be required by laws or regulations relating to the Goods and Services.
20.3 In the event that you do not pay our Supply Charges in full, the actual or implied licence to use any Work Product shall terminate. You are required to return all original and copies of such Work Product to us within 7 days of being requested to do so.
20.4 All file notes and work papers created by us in the course of supplying the Goods and Services remain our property.
21.1 We agree to procure and provide to you such consumables as may reasonably be required by you or us in connection with the supply of the Goods and Services.
21.2 You agree to reimburse us at our cost, or on the other basis agreed between us, for all consumables procured by us in the supply of the Goods and Services.
21.3 Unless specifically incorporated into our Supply Charges, you will reimburse us for any other out-of-pocket costs and expenses reasonably incurred by us in connection with the provision of the Goods and Services.
22.1 We will supply the Goods and Services to you from the Commencement Date and until Termination. However, we may accept or reject any particular supply order from you (at our discretion).
22.2 If these Terms are stated to be for a fixed period, or in respect of the supply of certain discrete Goods or Services, then these Terms will terminate on the expiry of that period or completion of the supply.
22.3 Subject to Clause 22.2, either of us may terminate these Terms by giving the other party written notice of termination of no less than the Termination Notice Period. On expiry of the Termination Notice Period these Terms terminates without prejudice to our respective rights accruing or accrued to the date of Termination.
22.4 If you ask us to supply further Goods and Services after the Termination of these Terms, and we commence to supply the Goods and Services without first agreeing with you different terms to these Terms, then the terms of these Terms will regulate the supply of those further Goods and Services.
22.5 Either of us may terminate these Terms immediately by written notice to the other party, if that other party:
(a) commits a breach of any of the material provisions of these Terms, or is in default of any warranty or obligation under these Terms, and the defaulting party fails to remedy such breach or default within 21 days of receiving written notice specifying such breach or default;
(b) commits any act constituting an act of bankruptcy; or
(c) suffers a receiver, administrator or liquidator to be appointed to any of its assets or property or any part thereof; or
UNLESS that default is waived in writing by the other party, but without prejudice to any other rights or remedies available to the other party.
22.6 The expiry or termination of these Terms shall be without prejudice to any rights that have already accrued to either of us under these Terms.
23.1 You may collect your Reference Materials within the period of 21 days following Termination of these Terms.
23.2 We may destroy or discard any of your Reference Materials that you do not collect from us on Termination of these Terms.
23.3 If we are required to store any of your Reference Materials you will be charged the costs of storage. You will also be charged any costs of retrieving your Reference Materials from storage.
23.4 All Reference Materials in our possession, both during and following the term of these Terms, are held by us at your risk. You are strongly encouraged to make your own insurance arrangements to cover the perceived value of your Reference Materials.
24.1 Unless otherwise agreed between us in writing, you are responsible for:
(a) any loss or damage to all Goods supplied by us as from the time of supply; and
(b) any loss or damage to your property during the supply of the Goods and Services.
24.2 You warrant to us that you have insurance to cover any loss or damage to property subject to Clause 24.1.
We may correspond with both you and others by e-mail, where appropriate, unless you specifically instruct us to the contrary. As you are aware, e-mail is not secure and may be read, copied or interfered with in transit or impaired. Therefore, you agree to assume the risks associated with transmission and to release us from any claim you may have arising from transmission defects.
Except as you may otherwise direct us, and subject to any confidentiality undertakings of which we are made aware between you and any other party with respect to particular Goods or Services, you agree that we may include, in a list of Goods and Services we have provided which we use for promotional purposes, a summary description of all completed supplies of Goods and Services and any pending Goods and Services which we provide to you.
We shall supply the Goods and Services as an independent contractor and neither us nor any of our personnel shall (unless otherwise agreed by us) be, or be deemed to be in partnership or in a joint venture relationship with you, or your employee, servant or agent.
28.1 These Terms shall be read subject to the Competition and Consumer Act 2010 (Cth) and to any implied terms, conditions or warranties imposed by that Act or any other Commonwealth, Territory or State legislation insofar as such legislation may be applicable and prevents either expressly or impliedly the exclusion or modification of any such term, condition or warranty, and our liability shall be limited to the maximum extent permitted by law.
28.2 You agree that you have inspected and tested any Goods supplied by us to you prior to purchase, and that at time of purchase you were of the view that the Goods were of acceptable quality.
28.3 You accept that facilities for the repair of Goods will not be available unless otherwise notified by us, and that you were aware of this fact at the time of purchase of the Goods.
28.4 We will agree a time for the provision of our Services with you. You agree that the time within which we provide Services to you is reasonable.
You agree to keep confidential and not at any time after the commencement of these Terms disclose or make known in any way to anyone anything contained within the Terms and you agree to procure each of you agents, employees and advisors to do the same.
30.1 Neither of us shall be liable for any delay or failure to perform our obligations pursuant to these Terms if such delay is due to Force Majeure.
30.2 If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
30.3 If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 90 days, either party may immediately terminate these Terms with notice in writing to the other party.
31.1 All disputes or differences that may arise between us in respect of the construction or effect of these Terms, or our respective rights, duties and liabilities, or any matter or event connected with or arising out of these Terms, shall initially be referred on notice to each other party.
31.2 Either of us may give notice to the other that the provisions of this Clause 31 apply to any dispute arising between us.
31.3 The notice referred to in Clause 31.2 shall include a summary of the issues in dispute and notification of a time within 14 days beginning 4 days after the service of the notice, and a place in the Capital of the State at which our representatives are to meet to try to resolve the dispute.
31.4 Our representatives shall meet at the time and place specified in the notice to try to resolve the dispute and shall, if necessary, continue to negotiate for 2 consecutive Business Days unless they otherwise agree to reconvene.
31.5 If the dispute has not been resolved by our representatives by the end of the meeting then either party may within 14 days thereafter apply to the President of the Law Society or professional governing body of the legal profession of the State to appoint a neutral adviser to assist in a further attempt by us in good faith to resolve the dispute by structured negotiations. Such person shall act as an expert not as an arbitrator and will be entitled to appoint such technical expert or experts as he or she considers necessary to assist in seeking to resolve the matter referred to them.
31.6 If we fail to appoint a neutral adviser within the 14 day period referred to in Clause 31.5 or we fail to reach agreement in the structured negotiations within 20 days of the neutral adviser being appointed, then any dispute may be referred to a court of competent jurisdiction. Neither party shall be deemed to be precluded from taking such interim formal steps as may be considered necessary to protect the party’s position while the mediation or other procedure is pending or continuing.
31.7 The costs of the neutral adviser shall be borne equally between us.
Where Goods or Services are supplied to you on credit, you irrevocably authorise us, our employees and agents to make such enquiries as we deem necessary to investigate your credit worthiness from time to time, including the making of enquiries of persons nominated as trade referees, your bankers or any other credit providers (the Information Sources). You hereby authorise the Information Sources to disclose to us such information concerning you which is within their possession and which is requested by us.
The Special Conditions (if any) form part of these Terms.
For the purposes of these terms each party:
(a) Expressly acts, covenants and binds on behalf of itself and on behalf of its related parties (including heirs, successors, permitted assigns, associated entities and legal personal representatives); and
(b) Covenants to procure (to the best of its abilities) the performance by each of its related parties of the terms and conditions contained herein.
35.1 These Terms shall apply to and bind the successors and assigns of the parties to these Terms.
35.2 Notwithstanding Clause 35.1, neither these Terms nor any right or obligation under these Terms are assignable in whole or in part by you, whether by operation of law or otherwise, without our prior written consent.
36.1 Any waiver or forbearance by us in regard to the performance of these Terms shall operate only if in writing and shall apply only to the specified instance, and shall not affect the existence and continued applicability of these Terms.
36.2 No failure or delay on our part in exercising any right, power or privilege under these Terms (and no course of dealing between or among any of the parties) shall operate as a waiver of any such right, power or privilege.
36.3 No waiver of any default on our part on any one occasion shall constitute a waiver of any subsequent or other default. No single or partial exercise or any such right, power or privilege shall preclude the further or full exercise of such right, power or privilege.
If any provision of these Terms are deemed or held to be illegal, invalid or unenforceable, these Terms shall be considered divisible and inoperative as to such provision to the extent it is deemed to be illegal, invalid or unenforceable. In all other respects these Terms shall remain in full force and effect.
You will bear your own costs in reviewing and executing these Terms.
39.1 All notices must be in writing and must be given by any one of the following means:
(a) by delivering it to the address of the party specified in these Terms on a Business Day during normal business hours;
(b) by sending it to the address of the party by pre-paid post;
(c) by sending it by facsimile transmission to the facsimile number of the party; or
(d) by sending it by email transmission to the email address of the party.
39.2 A notice shall be deemed to be given and received:
(a) if given in accordance with Clause 39.1(a) – on the next Business Day after the delivery in the place of delivery;
(b) if given in accordance with Clause 39.1(b) – 5 Business Days after the day of posting in the place of delivery;
(c) if given in accordance with Clauses 39.1(c) or 39.1(d) – upon receipt of electronic confirmation of delivery of the message.
These Terms and the Schedules and Annexures to these Terms comprise the entire agreement between us with respect to the subject matter of these Terms, and supersedes all prior negotiations, understandings, agreements, representations, warranties and correspondence (which cease to have any force or effect).
The parties intend the provisions of these Terms to be legally binding and enforceable against us.
These Terms may be executed in two or more counterparts and execution by each of the parties of any one of such counterparts will constitute due execution of these Terms.
43.1 These Terms shall be governed by and construed in accordance with the laws of the State.
43.2 The parties irrevocably submit to the non-exclusive jurisdiction of the Courts of the State in respect of any claim, dispute or difference arising out of or in connection with these Terms.
44.1 In these Terms unless the context indicates a contrary intention:
(a) the singular includes the plural and conversely;
(b) a gender includes all genders;
(c) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(d) a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them;
(e) a reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or annexure to, these Terms;
(f) a reference to an agreement or document (including these Terms) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by these Terms or that other agreement or document;
(g) a reference to a party to these Terms or another agreement or document includes the party’s successors, permitted substitutes and permitted assigns (and, where applicable, the party’s legal personal representatives);
(h) a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(i) a reference to conduct includes, an omission, statement or undertaking, whether or not in writing;
(j) a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing;
(k) a reference to dollars and $ is to Australian currency;
(l) a reference to a right or obligation of any two or more persons confers that right, or imposes that obligation, as the case may be, jointly and severally;
(m) the meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions;
(n) references to agree, approve or consent are references to agreement, approval or consent (as the case may be) in writing; and
(o) nothing in this agreement is to be interpreted against a party solely on the ground that the party put forward this agreement or any part of it.
In these Terms the following expressions have the meanings assigned to them respectively unless those meanings are repugnant to the context or subject matter:
45.1 Acceptance means the acceptance by you of an offer to supply Goods or Services by us, or acceptance by us of an order from you to acquire Goods or Services;
45.2 Business Day means a weekday (excluding a public holiday in the State);
45.3 Commencement Date means the date hereof, or the other date (if any) agreed between us to be the date of commencement of the terms and conditions of these Terms;
45.4 Confidential Information means any information coming to a party by virtue of being a party to these Terms, except so far as that information is then in the public domain other than as a result of a breach by the party of these Terms;
45.5 Force Majeure means a circumstance beyond the reasonable control of the parties that result in a party being unable to observe or perform on time an obligation under these Terms. Such circumstances shall include but shall not be limited to:
(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
(c) strikes;
45.6 General Retainer means the general periodic retainer set out in the Schedule;
45.7 Goods and Services means the goods and/or services to be supplied under these Terms;
45.8 Intellectual Property means all industrial and intellectual property rights including, without limitation, any copyright, patents, trademarks, service marks, design rights or eligible layout rights (whether registered or not), rights to apply for registration of any of these rights, innovations, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, computer programs, data bases, logos, domain names, business and trade names, Confidential Information, know-how and advertising material;
45.9 Key Performance Indicators means the key performance indicators (KPIs) listed in the Schedule (if any);
45.10 Month means a calendar month;
45.11 Our Representative means the person nominated by us to represent us under these Terms;
45.12 PMSI means a purchase money security interest as that term is defined in the PPSA;
45.13 PPSA means the Personal Property Securities Act 2009 (Cth);
45.14 Reference Materials means the materials provided by you to us for the purposes of us supplying the Goods and Services, including those materials listed in the Schedule;
45.15 Security Interest means:
(a) any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust or power, or title retention arrangement;
(b) a security interest as defined in the PPSA; or
(c) any document to grant or create anything referred to in either Clause 45.15(a) and 45.15(b) and any other thing which gives a creditor priority to any other creditor with respect to any asset or an interest in any asset.
45.16 Supply Charges means our fees and charges for the supply of the Goods and Services, including the fees and charges set out in the Schedule, together with our General Retainer (if any);
45.17 Site means any place under your control where Services are to be performed;
45.18 State means state nominated in the Schedule;
45.19 Trading Terms/Schedule means the period within or the basis on which you are required to pay our Supply Charges, as set out in the Schedule;
45.20 Termination means the termination or expiry of these Terms on its terms;
45.21 Termination Notice Period means the termination notice period specified in the Schedule;
45.22 Work Product means all Intellectual Property in an associated with the Goods and Services and the product or outcome of our supply of the Goods and Services; and
45.23 Your Representative means the person nominated by you to represent you under these Terms.
END OF GENERAL TERMS
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