Terms & Conditions

Terms and Conditions – Applied Automation & Engineering

DEFINITIONS AND INTERPRETATION
1. Definitions
  In these terms
  “Additional Fee” means:
  1. fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with the Suppliers usual hourly rates.
  2. expenses incurred by the Supplier, at the Customer’s request or reasonably required as a result of the Customer’s conduct.
  3. any cost to the Supplier caused as a result of the Supplier having to suspend or stop work on any Binding Order as permitted under the terms of this agreement including time (at the Supplier’s usual hourly rates) and materials expended in dismantling any process set up to provide the Goods or in re-installing any such process for the purpose of resumption of work by the Supplier (other than would have ordinarily have been required in order to provide Goods in a staged manner as envisaged by that order).
  4. any extra costs incurred or fees chargeable for additional work carried out due to a variation made by the Customer to the Order or by reason of any deficiency in any instruction, specification, design, test result or standard supplied by the Customer or incorporated into the Order by the Customer.
  “Business Day” means a day that is not a Saturday, Sunday or a day that is not wholly or partly observed as a public holiday in the place where the Goods are principally being provided or carried out.
  “Confidential Information” means all know how, Intellectual Property, business, financial, technical and other commercially valuable or sensitive information of a party in whatever form. This includes inventions (whether or not reduced to practice), trade secrets, methodologies, formulae, graphs, drawings, samples, biological materials, devices, models, business plans, policies and any other material or information which the party regards as confidential, proprietary or of a commercially sensitive nature that may be in the possession of that party of its Related Bodies Corporate or its or their employees or officers. Confidential Information does not include information which:
  1. Is now in the public domain, or enters the public domain after the Commencement Date, through no fault of the other party;
  2. Can be shown by contemporaneous records of the other party to have been known to the other party at the time it is received pursuant to this Agreement;
  3. Is provided to the other party by a third party after the Commencement Date, lawfully and without violating any restriction or disclosure that the other party ought reasonably have apprehended might exist;
  4. Can be shown by contemporaneous records of the other party to have been independently developed by the other party without reference to the Confidential Information.
  “Customer” means the customer identified or reasonably identifiable on any Quotation, Order or by previous dealings as the customer and includes that customer’s agents and permitted assigns. Where more than one person is reasonably identifiable as a customer they will together jointly and severally be the Customer.
  “Goods” means any goods and or services supplied or to be supplied by the Supplier.
  “Invoice” means an invoice or if required by law a tax invoice issued by the Supplier to the Customer for the provision of Goods.
  “Intellectual Property” includes:
  1. Any materials, drawings, calculations, maps, sketches, notes, data, computer programs, samples and other documents produced by the Engage pursuant to its obligations under this Agreement; and/or
  2. All industrial, commercial and intellectual property rights of any kind including but not limited to copyright, trademark, design, patent semi-conductor rights, trade, business or company names, trade secrets, confidential or other proprietary rights or any rights to register such rights whether created before or after the date of this Agreement and whether existing in Australia or overseas.
  “Loss” includes damage, detriment, or suffering flowing any act or omission whether of a financial or other nature and includes but is not limited to costs (solicitor and own client legal costs or the Supplier’s legal costs), expenses ordinarily and usually incurred as a result, lost profits, lost staff productivity, damages or compensation payable in respect of personal injury or property damage to any person.
  “Order” means an order for Goods placed by a Customer which may be agreed to be varied in writing from time to time by the parties. An Order does not have to satisfy any formal requirements and the Supplier may act upon a request or communication that can reasonably be regarded in the circumstances as constituting a request for the Supplier to provide Goods.
  “Price” means the price payable for any Goods as may be agreed between the Supplier and the Customer in accordance with a Quote or otherwise as determined in accordance with this agreement and any Additional Fees.
  “Quote” means a written description of Goods proposed to be supplied by the Supplier if accepted by the Customer and may include estimates or provisions for part of the Goods.
  “Supplier” means Applied Automation & Engineering Pty Ltd, its representatives, servants, agents or employees which is the supplier and installer of the Goods.
1. Interpretation
  1. In this agreement, unless the context otherwise requires:
  2. a reference to writing includes email and other electronic form of communication accessible through the Supplier’s website (if any);
  3. the singular includes the plural and vice versa;
  4. a reference to a clause or paragraph is a reference to a clause or paragraph of this agreement;
  5. a reference to a party to this agreement or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
  6. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
  7. headings are for ease of reference only and do not affect the meaning or interpretation of this agreement; and
  8. if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing;
    1. if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
    2. in all other cases, must be done on the next Business Day.

GENERAL
1. The terms of this agreement will apply to all transactions between the Customer and the Supplier relating to the provision of Goods by the Supplier.
2. The Customer is deemed to have accepted this agreement by acknowledging it in writing or by placing an Order with the Supplier.
3. The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing and signed by the parties.

QUOTES
1. Where the Supplier provides the Customer with a Quote for any Goods it is valid for 30 days from the date of issue unless otherwise stated in the Quote.
2. The Supplier reserves the right to withdraw or modify a Quote by notifying the Customer should it be necessary to do so in order to correct any error or to take account of any change of circumstances. Any withdrawn Quote will not be able to be accepted by the Customer and any modified Quote can only be accepted by the Customer in its modified form.
3. A Quote may contain estimates for elements of Goods to be supplied which are described as “Provisional” or “Estimated”. Any amount which is so described represents the Supplier’s reasonable attempt to make provision for the completion of the work requested by the Customer and are subject to being varied to make allowance for the actual cost of materials and actual elements found to be necessary to complete the work. Unless another methodology is set out in the Quote the final price for Provisional or Estimated Goods or parts of Goods will be determined by the Supplier with reference to the Supplier’s usual rates plus cost of materials and parts.
4. Prices for Goods given in Quotes (which are not marked as Provisional or Estimated) are binding on the Supplier for 3 months from the date of that Quote (subject only to clause 5.1). Quotes accepted by the Customer after 3 months from the date of that Quote are subject to increase as provided for in clause 3.2where Goods are required to be provided by the Supplier after that period.
5. An indication in a Quote of the time frame for the provision of the Goods is an estimate only and is not a fixed time frame unless it is described as a fixed time frame in the Quote. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon the Supplier.

ORDERS
1. For the purposes of clarification the Customer and the Supplier agree that a Quote is an invitation to treat, an Order provided by a Customer is an offer and a written communication to the Customer by the Supplier accepting an Order creates a Binding Order.
2. The Supplier will only be bound by the pricing in a Quote if a written Order is placed by the Customer that clearly identifies the Quote and accepts the terms of that Quote within 30 days of the Quote being provided.
3. The receipt of an Order by the Supplier does not create a binding obligation on the Supplier to provide the Goods the subject of that Order unless the Supplier has confirmed in writing to the Customer that it will produce the Goods (an accepted Order is described as “a Binding Order”).
4. The Supplier may at its option:
  1. Decline;
  2. Delay; or
  3. Suspend
    provision of all or part of the Goods described in a Binding Order if:-
    1. The Customer has breach this agreement;
    2. Any required component of the Goods becomes unavailable and a suitable replacement for a reasonably similar cost cannot be located despite the reasonable efforts of the Supplier;
    3. An appropriate level of credit has not been agreed to be provided by the Supplier to the Customer or the Customer’s level of credit has been exceeded;
    4. Any security for payment previously provided by the Customer is considered by the Supplier to be inadequate for any reason or the Customer has not provided security required to be provided by the Supplier; or
    5. The Customer or any person who, in the reasonable opinion of the Supplier, is associated with the Customer owes money to the Supplier otherwise than in accordance with the terms of any credit arrangement between the Supplier and the Customer or that person.

MODIFICATION OF QUOTED PRICES
1. Any price for Goods, whether specified in a Quote or otherwise agreed to at the time when a Binding Order comes into existence, may be varied by the Supplier in the following manner:-
  1. Where the Supplier incurs any wasted costs due to its reliance on information provided by the Customer that is found to be incorrect or inadequate Additional Fees can be added.
  2. If any parts or materials that are required to provide the Goods cannot be obtained by the Supplier at the cost which the Supplier reasonably anticipated at the time of fixing that price an adjustment to account for any increase or decrease in the cost of those parts or materials.
  3. Where by reason of the conduct of the Customer it is reasonably necessary for the Supplier to suspend work on the provision of the Goods or any part of them in order to maintain the Supplier’s efficient operations Additional Fees can be added.
  4. Where any tax or other imposition is required by law to be paid by the Supplier which did not apply or was not included at the time of fixing that price by adding to that price the amount of that tax or imposition.
  5. Where any tax or other imposition is no longer required by law to be paid by the Supplier which did apply or was included at the time of fixing that price by reducing that price by the amount of that reduction in tax or imposition.
  6. To adjust for agreed changes to the Goods to be provided by the Supplier:
    1. In such amount as may be agreed to in writing between the parties; or
    2. In the absence of any agreement by adjustment for any change in the cost of parts or materials and any change in the contribution of the Supplier’s other resources at the Supplier’s usual rates.
  1. To adjust for any change in the timing of provision of or delivery requirements of any Goods or part of the Goods requested by the Customer:
    1. By adjustment for any change in the cost of parts or materials and any change in the contribution of the Supplier’s other resources at the Supplier’s usual rates; and
    2. By the amount of any profit foregone by the Supplier by reason of that change.
  1. To adjust any cancellation or other termination of any part of a Binding Order by the Customer:
    1. By adjustment for any change in the cost of parts or materials and any change in the contribution of the Supplier’s other resources at the Supplier’s usual rates; and
    2. By the amount of any profit that would otherwise have been earned by the Supplier but for that cancellation or termination.
  1. As provided for in clause 7.1(a).
1. A written acceptance of a Quote will be regarded as authorized by the Customer if it is provided by an employee or owner of the Customer or received from an email or other electronic address associated with the Customer.
2. A Binding Order cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemnifies the Supplier against any Loss incurred by the Supplier as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

MANNER OF PROVIDING GOODS
1. A Quote may contain additional terms relating to the supply of Goods by the Supplier which may include:
  1. Provisions inconsistent with the terms of this agreement in which case such provisions are to have priority; or
  2. Dates for provision or delivery of all or part of the Goods.

SUPPLIER’S RIGHT TO VARY GOODS AND TO WITHHOLD SERVICES
1. If any materials required to provide Goods pursuant to a Binding Order are no longer readily available or are no longer permitted to be used the Supplier is entitled, as the situation requires, to:-
  1. Supply alternative materials of similar or better quality (where similar is not available) and to make a reasonable adjustment to the price should the alternative materials cost the Supplier more to provide;
  2. Supply alternative materials that are permitted to be used to achieve a like purpose and to make a reasonable adjustment to the price should the alternative materials cost the Supplier more to provide;
  3. Be excused from making supply of any part of the Goods where materials are necessary which are not capable of substitution in accordance with either clause (a)or (b)in which case the parties agree that the accepted Order or Quote will be varied by omitting the requirement on the Supplier to provide the related Goods;
  4. Should any Goods not be required to be provided by the Supplier under clause (c)the Supplier will work with the Customer to try to achieve a satisfactory alternative resolution at a cost to be agreed.
1. The Supplier may withhold provision of Goods without being in breach of any obligation or commitment to provide them in the following circumstances:
  1. Where the place for provision of the Goods is reasonably regarded as unsafe;
  2. Where it does not appear or the Supplier has not been given sufficient information to indicate that all relevant regulations or usual standards that are required to be met have been met prior to proceeding with provision of the Goods;
  3. Where the location for provision of the Goods is not ready or properly prepared;
  4. Where the presence of other trades or personnel would render the efficient provision of the Goods impractical;
  The Supplier is entitled to delay provision of any Goods until the matters described above are rectified or satisfactory steps are taken by the Customer to address them and any due date for provision will be extended by that delay including a reasonable time for the re-rostering of the Supplier’s labour.
1. The Supplier may otherwise suspend any obligation to provide the Goods until such time as the Customer has rectified any breach of these terms and any due date for provision will be extended by that delay including a reasonable time for the re-rostering of the Supplier’s labour.

VARIATIONS
1. The Customer may request that an agreed Quote be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.
2. If the Customer wishes to vary an agreed Quote the Supplier may charge an Additional Fee for any additional Goods.
3. The Supplier is entitled to an extension of time for the provision of Goods equal to any reasonable delay caused by the variation.

DELIVERY
1. Delivery of Goods by the Supplier occurs when the:
  1. Customer or Customer’s representative, agent or employee takes possession of the Goods; or
  2. the Supplier provides the Goods to the Customer’s nominated delivery address or place for performance of work even if the Customer is not present at the address.
2. A time or date given by the Supplier for the provision of Goods is an estimate only. A time or date for the provision of Goods requested by the Customer with an order is subject to the availability of the Supplier, however, the Supplier will do everything it can to ensure the provision of Goods by the time and date requested or within the time frame specified. The Customer must still accept Goods provided at a different time or date within the period agreed to for provision Goods provided for in the Quote accepted by the Supplier.
3. The cost of providing the Goods, including the cost of delivery and installation, is not included in the Quote provided, unless otherwise stated by the Supplier.

ACCESS
1. The Customer shall ensure that the Supplier has clear and free access to any location at which it is to provide the Goods. The Supplier will not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Supplier.
2. The Customer warrants it has permission to undertake the necessary work at the location in which the Supplier is to provide the Goods. The Customer indemnifies the Supplier against liability to a third party, from whom the Customer has obtained or is required to obtain permission from to undertake the necessary work, that may arise due to any loss or damage caused to the site.

INVOICING
1. The Supplier may in its absolute discretion, issue an Invoice to the Customer in any one or more of the following ways:
  1. prior to commencing work on the Goods, for any amount up to that specified on the Quote (and if necessary for any Additional Fees);
  2. prior to providing the Goods, for any amount up to that specified on the Quote (and if necessary for any Additional Fees);
  3. before full completion of work provided for in an accepted Order (including any Additional Fees) for progress claims;
  4. for the price of Goods on delivery of any Goods to the Customer; or
  5. at the completion of an Order, the Supplier may issue a final invoice for the remaining proportion of an Order (including any Additional Fees).

PAYMENT
1. The Customer must pay an Invoice issued by the Supplier within 30 days of it being issued to the Customer, unless stated otherwise in the Quote.
2. If any Invoice is due but unpaid, the Supplier may withhold the provision of any further Goods until overdue amounts are paid in full.
3. The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
4. The Customer is not entitled to retain any money owing to the Supplier notwithstanding any default or alleged default by the Supplier of this agreement, including (but not limited to) the supply of allegedly faulty or defective Goods, to an inadequate standard or a delay in the provision of Goods. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
5. The Customer is to pay the Supplier on demand interest, calculated daily, at the rate determined by the Penalty Interest Rates Act 1983 (Vic) on all overdue amounts owed by the Customer to the Supplier.
6. All costs and expenses associated with collecting overdue amounts, including, but not limited to, solicitor and own client legal costs or the Supplier’s legal costs and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under this agreement.

RISK
1. Risk in any Goods supplied to the Customer passes to the Customer upon the Goods leaving the Supplier’s place of business;
2. The Customer must arrange its own insurance for the Goods from and including the date of delivery until payment has been received by the Supplier in full for those Goods.

RETENTION OF TITLE
1. Legal and equitable title in Goods or anything which is created by a combination of Goods supplied to the Customer with Services supplied by the Supplier pursuant to this agreement does not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.
2. Where Goods or anything which is created by a combination of Goods supplied to the Customer with Services supplied by the Supplier pursuant to this agreement without payment in full of all monies payable in respect thereof, the Customer;
  1. is a bailee of the Goods or things until ownership passes to the Customer;
  2. must be able upon demand by the Supplier to separate and identify as belonging to the Supplier the Goods and things which are held by the Customer and must return the Goods and things to the Supplier;
  3. must not sell, dispose, or otherwise part with possession of the Goods or things other than in the ordinary course of business and for market value. If the Customer, sells, disposes or parts with possession of the Goods or things then the Customer must hold the proceeds of the sale or such an act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
  4. must not charge or grant an encumbrance over the Goods or things nor allow any person to have or acquire any security interest in the Goods or things while they remain the property of the Supplier;
  5. agrees that the Supplier may repossess the Goods or things if payment is not in accordance with the terms of this agreement;
  6. grants an irrevocable licence to the Supplier or its agent to enter the Customer’s premises in order to recover possession of Goods or things pursuant to this paragraph. The Customer indemnifies the Supplier in respect of any damage to property or personal injury which occurs as a result of the Supplier entering the Customer’s premises;
  7. the Customer holds the benefit of the Customer’s insurance of the Goods or things on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods or things being lost, damaged or destroyed; and
  8. the Supplier may commence proceedings to recover the Price of the Goods or things whether or not ownership of the Goods has passed to the Customer.
3. Where Goods and things are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods and things, and the Customer makes a new object from the Goods, whether finished or not, or the Customer mixes the Goods with other goods or the Goods become part of other goods (New Goods):
  1. the Customer acknowledges that the New Goods are held on trust for the Supplier until payment of all sums owing to the Supplier whether under this agreement or any other contract have been made and the Supplier may require the Customer to store the New Goods in a manner that clearly shows the ownership of the Supplier; and
  2. the ownership of the New Goods passes to the Supplier at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
4. Notwithstanding clause 14.2the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business provided that:
  1. where the Customer is paid by a third party in respect of Goods or things including New Goods, the Customer holds the whole of the proceeds of sale less any GST on trust for the Supplier in a separate account – until all amounts owned by the Customer to the Supplier have been paid; or
  2. where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to the Supplier upon the Supplier giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints the Supplier as its attorney.
5. The Customer acknowledges that the Supplier may produce this paragraph to register its legal and equitable interest of the Goods or things and New Goods as a secured party in accordance with the provisions of the Personal Property Securities Act 2009.

PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
1. For the purposes of this paragraph financing statement, financing change statement, security agreement, and security interest have the same meaning given to it by the PPSA.
2. The Customer acknowledges and agrees that this agreement:
  1. constitute a security agreement under the PPSA;
  2. creates a security interest in all Goods or things created or provided by the Supplier or that will be created or provided by the Supplier to the Customer in the future and in anything which is an identifiable combination of Goods provided by the Supplier and Services provided by the Supplier; and
  3. provide the Supplier with a right to register and perfect a personal property security interest.
1. The Customer agrees to:
  1. promptly sign any further documents and/or provide any further information which the Supplier may reasonably require to:
    1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    2. register any other document required to be registered by the PPSA: or
    3. correct a defect in a statement referred to in the above two paragraphs.
  2. indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register (established by the PPSA) or releasing any Goods or things or New Goods thereby charged;
  3. not register a financing change statement in respect of a security without the prior written consent of the Supplier;
  4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or things or New Goods in favour of a third party without the prior written consent of the Supplier;
  5. immediately advise the Supplier of any material change in its business practices of selling the Goods or things or New Goods which would result in a change in the nature of proceeds derived from such sales.
1. To the extent the law permits:
  1. for the purposes of sections 115(1) and 115(7) of the PPSA:
    1. the Supplier need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4); and
    2. sections 142 and 143 are excluded;
  2. for the purposes of section 115(7) of the PPSA, the Supplier need not comply with sections 132 and 137(3).
  3. if the PPSA is amended after the date of this document to permit the Customer and the Supplier to agree to not comply with or to exclude other provisions of the PPSA, the Supplier may notify the Customer that any of these provisions is excluded, or that the Supplier need not comply with any of these provisions, as notified to the Customer by the Supplier.
1. To the extent the law permits, the Customer waives:
  1. its rights to receive any notice that is required by:
    1. (a) any provision of the PPSA (including a notice of a verification statement); or
    2. (b) any other law before a secured party or Receiver exercises a right, power or remedy; and
  2. any time period that must otherwise lapse under any law before a Supplier or receiver exercises a right, power or remedy.
  If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer).
  However, nothing in this paragraph prohibits the Supplier or any receiver from giving a notice under the PPSA or any other law.
1. Subject to any express provisions to the contrary nothing in this agreement is intended to have the effect of contracting out of any of the provisions of the PPSA.

SECURITY AND CHARGE
1. In consideration of the Supplier agreeing to provide the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under this agreement (including but not limited to the payment of any money).
2. The Customer indemnifies the Supplier against all the Supplier’s costs and disbursements including reasonable legal costs incurred in exercising the Supplier’s rights under this paragraph.
3. The Customer irrevocably appoints the Supplier its attorney to do all acts and things necessary to perform all necessary acts to give effect to the provisions of this paragraph including, but not limited to, signing any document on behalf of the Customer.

AGENCY AND ASSIGNMENT
1. The Customer agrees that the Supplier may at any time appoint or engage a contractor to perform an obligation of the Supplier arising out of or pursuant to this agreement.
2. The Supplier has the right to assign and transfer to any person all of any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from this agreement provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under this agreement;
3. The Customer is not to assign, or purport to assign, any of its obligations or rights under this agreement without the prior written consent of the Supplier.

CONFIDENTIAL INFORMATION
1. Each party may use and disclose the Confidential Information of the other party solely to the extent necessary to perform its obligations in accordance with this agreement.
2. Each party must:
  1. Not use, and ensure that its employees, officers and agents do not use, any Confidential Information of the other party for any purpose other than compliance with its obligations under this agreement;
  2. Take all action necessary to maintain the confidential nature of the Confidential Information of the other party, including keeping all records of that Confidential Information under lock and key or password protected;
  3. Not disclose any of the Confidential Information of the other party to any person other than those of its employees who need to have access to that Confidential Information, who are aware of the requirements of this agreement, and who are bound by an enforceable obligation of confidentiality; and
  4. Destroy all documents and other material in whatever form in its possession, power or control which contain or refer to any Confidential Information of the other party, on the earlier of the expiry or termination of this agreement, demand by the other party or the time they are no longer required.
  5. Each party may disclose Confidential Information of the other party if legally compelled to do so by a judicial or administrative body. However, it must take all reasonably available legal measures to avoid such disclosure, and notifies the other party as soon as practicable after such disclosure is ordered so that the other party may seek an appropriate protective order or other remedy.
  6. Each party acknowledges that due to the proprietary and competitively-sensitive nature of the Confidential Information of the other party, the other party would be irreparably harmed by any actual or threatened breach of this clause, and that monetary damages would insufficient to remedy such actual or threatened breach.

This clause 18 survives the termination or expiry of this agreement for any reason.

INTELLECTUAL PROPERTY
1. The Customer warrants that it owns all Intellectual Property pertaining to its Order for Goods or has a licence to authorise the Supplier to reproduce or use all copyright works or other materials the subject of Intellectual Property supplied by the Customer to the Supplier for the purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified the Supplier against all Loss incurred by the Supplier in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property in relation to any material supplied by the Customer.
2. Unless specifically agreed in writing between the Supplier and the Customer, all Intellectual Property in any works created by the Supplier on behalf of the Customer vest in and remain the property of the Supplier.
3. Subject to payment of all invoices due in respect of the Goods, the Supplier grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by the Supplier in connection with the provision of Goods under these terms for the purposes contemplated in the order.

DEFAULT BY CUSTOMER
1. Each of the following occurrences constitutes an event of default:
  1. the Customer breaches or is alleged to have breached this agreement for any reason (including, but not limited to, defaulting on any payment due under this agreement) and fails to remedy that breach within 14 days of being given notice by the Supplier to do so;
  2. the Customer, being a natural person, commits an act of bankruptcy;
  3. the Customer, being a corporation, is subject to:
    1. a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
    2. a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer’s property and undertaking;
    3. any assignment for the benefit of creditors;
1. 1. the Customer purports to assign its rights under this agreement without Supplier’s prior written consent;
  2. the Customer ceases or threatens to cease conduct of its business in the normal manner.
2. Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:
  1. terminate this agreement;
  2. terminate any or all Orders and credit arrangements (if any) with the Customer;
  3. refuse to deliver Goods or provide further Services;
  4. pursuant to paragraph 14.2, repossess and re-call any Goods delivered to the Customer, the payment for which has not been received; or
  5. retain (where applicable) all money paid on account of Goods or otherwise.
3. In addition to any action permitted to be taken by the Supplier under paragraph 20.2, on the occurrence of an event of default all invoices will become immediately due and payable.

GUARANTEES AND WARRANTIES
1. If Goods or any part of them are not manufactured by the Supplier the guarantee of the manufacturer of those Goods is accepted by the Customer and is the only guarantee given to the Customer in respect of the Goods and while the Supplier may assist the Customer in pursuit of any claim against the manufacturer it shall not be liable to the Customer for defects or failures therein. The Supplier might not assist the Customer in pursuit of any claim against the manufacturer if:
  1. any party other than the Supplier, its employees or its contractors has interfered with or modified the Goods;
  2. the Customer has failed to sufficiently maintain the Goods; or
  3. there occurs misuse of the Goods or use in a manner other than that intended or specified by the manufacturer or as advised by the Supplier.
2. The Supplier will act to fulfil a guarantee given on any Goods manufactured or supplied by the Supplier. This applies so long as the damage does not arise from:
  1. Improper adjustment, calibration or operation by the Customer;
  2. The use of accessories including consumables, hardware, or software which were not manufactured by or approved in writing by the Supplier;
  3. Any contamination or leakages caused by the Customer;
  4. Any modifications of the Goods which were not authorised in writing by the Supplier;
  5. Any misuse of the Goods by the Supplier or anyone for whom the Supplier its employees or its contractors;
  6. Any use or operation of the Goods outside of the physical, electrical or environmental specifications of the Goods;
  7. Inadequate or improper site preparation;
  8. Inadequate or improper maintenance of the Goods.
3. In accordance with Schedule 2 Section 64A of the Competition and Consumer Act 2010 (Cth) the liability of the Supplier for failing to comply with a guarantee and for supply of defective Goods is limited to one or more of the following:
  1. Replacement of Goods or the supply of equivalent Goods;
  2. Repair of Goods;
  3. Payment of the cost of replacing the Goods or acquiring equivalent Goods;
  4. Payment of the cost of having the Goods repaired;
  5. Supplying the Services again; or
  6. Payment of the cost of having the Services supplied again.

FORCE MAJEURE
1. If circumstances beyond the Supplier’s control prevent or hinder its provision of the Goods, the Supplier is free from any obligation to provide the Goods while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
2. Circumstances beyond the Supplier’s control include, but are not limited to, availability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures of malfunctions of computers or other information technology systems.

COMPLIANCE WITH LAWS
1. The Supplier assumes the compliance of existing installations.

INDEMNITY
1. The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods, any Order or the subject matter of these terms of trade including.
2. This includes, but is not limited to, any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party/party legal casts for which the Supplier is liable in connection with any such claim or demand.
3. This provision remains in force after the termination of this agreement.

EXCLUSIONS AND LIMITATION OF LIABILITY
1. The Customer expressly agrees that use of the Goods is at the Customer’s risk. To the full extent allowed by law, the Supplier’s liability for breach of any term implied into these term by any law is excluded.
2. All information, specifications and samples provided by the Supplier in relation to the Goods are approximations only, subject to any guarantees under the Australian Consumer Law, small deviations or slights variations from them which do not substantially affect the Customer’s use of the Goods will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
3. Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriates or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
4. To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in connected with the provision or failure to provide Goods, or otherwise arising out of the provision of Goods, whether based on these terms of trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
5. The Customer acknowledges that the Goods are not for personal, domestic or householder purposes.

Termination
1. In addition to the express rights of termination provided in this agreement, a party may terminate this agreement by giving 30 days written notice to the other party.

Other matters
1. This agreement is governed by the laws of the state where the Supplier’s registered office is situated and each party irrevocably submits to the non-exclusive jurisdiction of the courts of such state.
2. This agreement and any variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
3. This agreement supersedes all oral and written negotiations and communications by and on behalf of either of the parties.
4. In entering into this agreement, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of this agreement.
5. If any provision of this agreement at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
6. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
7. A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on an Order (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Order; sent by facsimile transmission to the facsimile number of the addressee specified in the relevant Order, with acknowledge of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Order with acknowledgment of delivery.
8. A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by facsimile or email before 4pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place or receipt.
9. A party may only change its postal or email address or facsimile number for service by giving notice of that change in writing to the other party.

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