1. Interpretation
1.1. Unless otherwise inconsistent with the context the word “person” shall also mean corporation.
1.2. Words importing the singular number shall be deemed to include the plural and vice versa.
1.3. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.
1.4. “Purchaser” means the “Applicant” stated in the Credit Application and any partner, agent, contractor, employee of that person and any successors and assignees. In the case of two or more persons, they will be referred to jointly and severally.
1.5. “Supplier” means that member or members of Hydraulic Seals Group, being Hydraulic Seals Australia Pty Ltd ACN 087 687 018 and any related bodies corporate as defined by the Corporations Act 2001 (Cth) and any successors and assignees, with which the Purchaser deals or contracts.
1.6. “Goods” shall include goods, products, materials, and services supplied by the Supplier to the Purchaser.
2. Acceptance
2.1. Acceptance by the Purchaser of these Terms & Conditions, may be by any one of the following ways:
2.1.1. by signing these Terms & Conditions;
2.1.2. by signing a Credit Application, proposal or quotation issued by the Supplier in which these Terms & Conditions were attached or referred to;
2.1.3. issuing a purchase order or similar request for Goods in response to a quotation or proposal referred to at 2.1.2 above; or
2.1.4. visiting or making a purchase through the Supplier’s website,
(Agreement).
3. Quotation, Purchase Order, and Agreement
3.1. A written quotation issued by the Supplier to the Purchaser is an offer to sell (Quotation), and overrides the Suppliers’ prevailing price list, if any. A Quotation expires on the date specified as an expiry date. If no expiry date is specified, the Quotation expires 30 days after the date of the Quotation.
3.2. The price quoted in the Quotation is subject to the Purchaser issuing an order for all of the Goods described in the Quotation (Purchase Order). If the Purchaser does not order all of the Goods pursuant to a Purchase Order, then the Supplier reserves the right to revise the pricing of the Goods ordered by issuing a new written quotation, and the Purchaser shall pay the revised price as invoiced by the Supplier.
3.3. The Supplier may withdraw, revoke or vary a Quotation at any time prior to the Purchaser submitting a Purchase Order which accepts the offer to sell comprised by the Quotation.
3.4. The price of the Goods under an Agreement may be increased or changed by the Supplier if the supply of Goods:
3.4.1. does not start within 30 days from acceptance of the Quotation;
3.4.2. is stopped or suspended for more than 30 days;
3.4.3. is changed by the Purchaser in any way before, during, or after commencement of supply, including but not limited to the re-design of the project, the start date of supply, the completion date of supply and the agreed rate of supply; or
3.4.4. has not been completed within 12 months of the date of the Quotation.
3.5. Where in the period between entry into the Agreement and delivery of the Goods, the Supplier incurs an increase in the cost of producing and/or delivering the Goods, the Supplier may increase the quoted price of those Goods at any time prior to delivery. If an increase in the price occurs, this must be communicated to the Purchaser as soon as possible, and the Purchaser will have 48 hours to either accept or decline the variation to the quoted price (Variation). If the Supplier does not receive a response from the Purchaser within 48 hours, the Supplier will consider the Variation accepted by the Purchaser.
3.6. These Terms & Conditions shall be deemed to be incorporated into any Agreement between the Supplier and the Purchaser. Any additional terms and conditions contained in any order, offer, acceptance or other document of the Purchaser and all representations, statements, terms, and conditions, and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.
4. Cancellations and variations to Purchase Orders
4.1. A Purchase Order may only be varied or cancelled by the Purchaser with the prior written consent of the Supplier, which will not be unreasonably withheld.
4.2. In the event of such variation or cancellation, the Purchaser agrees to reimburse and indemnify the Supplier for any reasonable costs, expenses or charges incurred by the Supplier in preparation for and in the execution of the Purchase Order.
5. Specifications and Working Documentation
5.1. If the Purchaser’s order refers to a “Specification” or “Working Documentation” then:
5.1.1. the Purchaser represents and warrants to the Supplier that any such Specification or Working Documentation does not, and any Goods produced by the Supplier pursuant to such Specification or Working Documentation will not, breach or infringe upon the rights or property of any third party including, without limitation, patent, design, copyright or other intellectual property rights and the Purchaser indemnifies the Supplier and must hold it harmless from and against any loss, damage, liability or costs suffered or incurred by the Supplier arising out of a breach by the Purchaser of the representations and warranties made by it pursuant to this clause 5.1.1;
5.1.2. the Purchaser releases the Supplier from and waives any rights or causes of action it may at any time have had against the Supplier for this release in relation to any default or defect in any Goods made pursuant to the Purchaser’s Specification or Working Documentation provided by the Purchaser to the Supplier; and
5.1.3. the Purchaser indemnifies the Supplier and must hold it harmless from and against any loss, damage, liability, or cost suffered or incurred by the Supplier attributable, whether directly or indirectly to the terms of any Specification or Working Documentation provided by the Purchaser to the Supplier.
5.2. Unless otherwise stated on a Quotation, Goods will be supplied by the Supplier within the tolerances in regard to quantity, weight, dimension, and chemical composition as specified in the relevant Purchase Order, if not specified, as consistent with usual industry practice. Where the total mass or length of any item supplied includes a fraction of a tonne, the Purchaser must pay for that fraction on a pro-rata basis.
5.3. Unless otherwise agreed, the Purchaser must deliver all Working Documentation without charge to the Supplier prior to commencement of the supply of the Goods. Where the Purchaser submits electronic copies of Working Documentation to the Supplier, then the Supplier reserves the right to charge for the printing costs associated with the Working Documentation.
6. Delivery
6.1. The Supplier may subcontract the whole or any part of the delivery of the Goods to be sold to the Purchaser.
6.2. Any date quoted for delivery in the Quotation is an estimate only, unless a guarantee shall have been given by the Supplier in writing. The Purchaser shall accept and pay for Goods if and when tendered notwithstanding any failure by the Supplier to deliver by the quoted date. Written advice to the Purchaser that Goods are ready for delivery whether in whole or in part shall constitute tendering and the terms of payment shall apply.
6.3. The Supplier reserves the right to deliver by instalments and if delivery is made by instalments the Purchaser shall not be entitled to terminate or cancel the Agreement.
6.4. The Purchaser must be willing and able to accept delivery of the Goods within 7 days of notification from the Supplier that the Goods are ready for delivery.
6.5. Where the Purchaser is not willing and able to accept delivery of the Goods when the Goods are ready for delivery by the Supplier, the Purchaser shall be liable for any additional charges the Supplier incurs, at the current rates for storage and/or double handling. If there is no current rate, then at a rate reasonably determined by the Supplier.
6.6. Any Quotation containing a provision to supply Goods “ex stock” is subject to fulfilment of prior orders at the date of receipt of the Purchaser’s order.
6.7. If the Supplier quotes the price as “ex-factory”, the Supplier shall deliver the Goods at the premises of the Supplier.
6.8. The Purchaser bears the sole responsibility for and the risk of unloading the Goods.
6.9. The Supplier is not liable to the Purchaser for any loss or damage including direct or indirect or consequential loss or damage incurred by reason of any delay in delivery or non-delivery, unless caused by the Supplier's gross negligence or intentional misconduct. In the event of delay or non-delivery, the Supplier will:
6.9.1. promptly notify the Purchaser; and
6.9.2. take all reasonable steps to minimise potential losses to the Purchaser.
7. Price and payment
7.1. Unless otherwise agreed in writing, payment is due within 30 days from the end of the month in which the Goods are invoiced to the Purchaser.
7.2. Time is of the essence with respect to the Purchaser’s payment obligations under an Agreement.
8. Title and risk
8.1. Notwithstanding the delivery of the Goods or part thereof, the Goods remain the sole and absolute property of the Supplier as full legal and equitable owner until such time as the Purchaser shall have paid the Supplier the full purchase price together with the full price of any other Goods the subject of any other Agreement with the Supplier.
8.2. The Purchaser acknowledges that they receive and hold the Goods delivered by the Supplier solely on behalf of the Supplier until the full purchase price is paid to the Supplier, along with any outstanding amounts for other Goods covered under any separate Agreements with the Supplier. Until such time as the Purchaser becomes the owner of the Goods, it will;
8.2.1. store the Goods on the Purchaser’s premises or any premises under the control of the Purchaser as agent of the Purchaser (Purchaser’s Premises) to which they were delivered, separately;
8.2.2. ensure that the Goods are kept in good and serviceable condition, following any storage instructions provided by the Purchaser;
8.2.3. secure the Goods from risk, damage, and theft; and
8.2.4. keep the Goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Purchaser.
8.3. Until such time as the Purchaser becomes the owner of the Goods:
8.3.1. the Supplier authorises the Purchaser to sell the Goods or a portion of them (Subject Goods), in the ordinary course of business, subject to the following conditions:
8.3.1.1. the proceeds of any sale of the Goods shall be paid into a separate account and held in trust for the Supplier; and
8.3.1.2. the Purchaser agrees that if the Subject Goods are sold to a third party before payment has been made to the Supplier, the Purchaser automatically assigns to the Supplier its right to collect any outstanding payments from the third party related to the sale or disposal of the Subject Goods;
8.3.2. the Supplier will not be bound by any agreements with third parties to which the Purchaser is a party;
8.3.3. records shall be kept by the Purchaser of any Goods owned by the Supplier;
8.3.4. where the Purchaser is entitled to a period of credit, but if prior to the expiration of the period of credit the goods are sold and the proceeds of sale received the Purchaser shall account forthwith to the Supplier for the price of the goods;
8.3.5. in the event that the Purchaser uses the Goods in a manufacturing or construction process of its own or a third party, then the Purchaser shall hold such part of the proceeds of such manufacturing or construction process as relates to the Goods, in trust for the Supplier. Such part shall be deemed to equal in dollar terms to the amount owing by the Purchaser to the Supplier at the time of the receipt of such proceeds; and
8.3.6. should the Purchaser die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy laws or being a company calls a meeting for the purpose of or to go into liquidation or has a winding-up petition presented against it or has a receiver or administrator appointed, the Supplier may at its option notwithstanding its waiver of such default or failure and without prejudice to its other rights under these Terms & Conditions, suspend or cancel an Agreement or require payment in cash before or on delivery or tender of Goods or documents notwithstanding terms of payment previously specified or may repossess and take over the Goods and dispose of the same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale.
8.4. If the Purchaser does not pay for the Goods in full or in part by the due date, the Supplier is hereby irrevocably authorised by the Purchaser to enter the Purchaser’s Premises, and use reasonable force to take possession of the Goods. The Purchaser expressly indemnifies and holds the Supplier harmless against any loss or damages reasonably sustained as a result of such entry or from the recovery of the Goods.
8.5. On retaking possession of the Goods the Supplier may elect to refund to the Purchaser any part payment that may have been made and to credit the Purchaser’s account with the value of the Goods less any charge for recovery of the Goods, or to resell the Goods.
8.6. Unless otherwise agreed in writing, risk in the Goods shall pass to the Purchaser at the time the Goods have been placed on the vehicle which is to effect delivery from the Supplier’ store or warehouse to the Purchaser. The Goods shall remain at the Purchaser’s risk at all times unless and until the Supplier retakes possession of the Goods pursuant to these Terms & Conditions.
9. Claims, shortages, and defects
9.1. The Purchaser agrees to inspect all Goods received immediately upon delivery.
9.2. The Supplier will use reasonable endeavours to transfer warranties given by third party manufacturers of the Goods supplied and to the extent those warranties are transferrable. However, the Supplier will not be liable for negotiating with manufacturers on behalf of the Purchaser and will not be liable to provide warranties to the Purchaser in addition to those provided by the manufacturer and transferred under this clause.
9.3. Notwithstanding any other term of this Agreement, the Supplier provides the Purchaser with a 12-month warranty against defective materials and workmanship with respect to any Goods manufactured by the Supplier (Warranty Period), subject to the following conditions being strictly met:
9.3.1. the Purchaser must submit a written claim to the Supplier as soon as reasonably possible, and within the Warranty Period, including all relevant details to support the warranty claim (Warranty Claim);
9.3.2. the Purchaser must be able to demonstrate compliance with the 'Specification Sheet' provided by the Supplier with the Goods;
9.3.3. the Purchaser must grant the Supplier access to the site where the Goods and the machinery housing the Goods are located (if requested by the Supplier);
9.3.4. the Purchaser must provide any additional information and assistance necessary to support the Supplier in investigating and addressing the Warranty Claim; and
9.3.5. the Supplier determines, acting reasonably, that the Goods manufactured by the Supplier are defective in materials and/or workmanship.
9.4. To the extent permitted by law and unless otherwise expressly agreed, the Supplier does not provide and expressly excludes all warranties whether implied by statute or otherwise in respect of any Goods.
9.5. Insofar as Goods supplied by the Supplier are not of a kind ordinarily acquired for personal domestic or household consumption, and unless the Purchaser establishes that reliance on this provision would not be fair and reasonable, the liability for breach of a condition or warranty, implied into these Terms & Conditions by the Competition and Consumer Act 2010 (Cth) (other than a condition implied by Section 51-53) is limited:
9.5.1. in the case of Goods to any one of the following as determined by the Supplier;
9.5.1.1. the replacement of the Goods or the supply of equivalent Goods; or
9.5.1.2. the repair of the Goods; or
9.5.1.3. the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
9.5.1.4. the payment of the costs of having the Goods repaired;
9.5.2. in the case of services to any one of the following as determined by the Supplier;
9.5.2.1. the supplying of the services again; or
9.5.2.2. the payment of the cost of having the services supplied again.
9.6. The Supplier shall not be liable in any circumstances for any;
9.6.1. defects or damages caused in whole or in part by misuse, abuse, neglect, electrical or other overload, unsuitable lubricant, improper installation repair or alteration (other than by) or accident;
9.6.2. any transport freight charges installation removal labour or other costs;
9.6.3. defects in Goods not manufactured by it but will endeavour to pass on to the Purchaser the benefit of any claim made by the Supplier and accepted by the manufacturer of such Goods under a third party warranty given by the manufacturer of such Goods provided that nothing contained in this subparagraph shall limit the rights of the Purchaser to proceed against the Supplier pursuant to the Competition and Consumer Act 2010 (Cth); or
9.7. technical advice or assistance given or rendered by it to the Purchaser or not in connection with the manufacture construction or supply of Goods for or to the Purchaser provided always that the Supplier has rendered such services with due care and skill and that any material supplied in connection with those services are reasonably fit for the purpose for which they are supplied.
9.8. Subject to clause 9.5 herein, the Supplier shall not be liable for any loss or damage whatsoever and howsoever arising whether direct indirect or consequential or in respect of any claim whenever and however made for any loss or damage deterioration deficiency or other fault or harm in the Goods manufactured, work executed or services provided by or on behalf of or in any arrangement with the Supplier or occasioned to the Purchaser of any third or to their property or interest and whether or not due to the negligence of the Supplier its servants or agents or actions constituting fundamental breach of contract.
9.9. In no event will the Supplier be liable to the Purchaser for any indirect, special, or consequential damages, including (without limitation) lost profits, costs of delay, personal injury, property damage or liabilities to buyer or third parties arising from any source. This limitation on damages shall apply to all Goods sold by the Supplier. Notwithstanding the preceding clauses, in the event that the Supplier is found liable for damages based on any defect or nonconformity in Goods sold by it, its total liability for each defective or nonconforming Good shall not exceed the price paid by the Purchaser for such defective Good.
10. Force Majeure
10.1. For the purposes of this clause 10, ‘Force Majeure’ means anything outside reasonable control of a party, including but not limited to:
10.1.1. power, data or communication outages;
10.1.2. acts of God or the public enemy, national emergencies, radioactive contamination, insurrection, riot, hostile or warlike action or sabotage;
10.1.3. a transportation embargo;
10.1.4. industrial action (including a picket); and
10.1.5. any legislation or regulation and any action or inaction of any government or government agency.
10.2. If any party is wholly or partially unable to perform its obligations because of a Force Majeure event except for its obligation to pay money, then:
10.2.1. as soon as reasonably practicable after the Force Majeure event arises, the party must notify the other party of the extent to which the notifying party is unable to perform its obligations; and
10.2.2. that party's obligation to perform will be suspended for the duration of the delay arising directly out of the Force Majeure event.
10.3. Either party may terminate an Agreement immediately by giving notice to the other party if the suspension of the affected party’s obligation continues under clause 10.2 for more than 60 days.
11. Default
11.1. Upon the occurrence of default by the Purchaser under these Terms & Conditions;
11.1.1. the Supplier may at its discretion withhold the further supply of Goods, or cancel the affected Agreement;
11.1.2. the whole of any outstanding balance will become immediately due and payable by the Purchaser to the Supplier together with all legal costs and expenses associated with recovery of the outstanding balance on an indemnity basis; and
11.1.3. the Purchaser must pay to the Supplier interest at the rate of 1.5% per month on daily balances in respect of any amounts as may from time to time be overdue until paid and such money together with all interest shall be recoverable forthwith from the Purchaser.
12. Charge
The Purchaser hereby charges with payment of any indebtedness to the Supplier all beneficial interest (freehold and leasehold) in land and personal property held now or in the future by the Purchaser. The Purchaser agrees that if demand is made by the Supplier, the Purchaser receiving such a demand will immediately execute a mortgage or other instrument of security, or consent to a caveat as required, and against the event that the Purchaser fails to do so within a reasonable time of being so requested, the Purchaser hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by the Supplier to be its true and lawful attorney to execute and register such instruments. Notwithstanding any other provision in this clause 12 and in addition thereto the Supplier may lodge a caveat noting the interest given by this charge on the title of any property of the Purchaser whenever it so wishes.
13. Personal Property Securities Act
13.1. For the purposes of this clause 13, “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. Where a particular section or term from the PPSA is used in these Terms & Conditions, it is deemed to be that section or term as defined or used in the PPSA as amended, renumbered or replaced from time to time.
13.2. To the extent permitted by law, and for better securing payment of the purchase price for all Goods supplied by the Supplier plus any costs or charges, the Purchaser hereby charges all of its real and personal present and after-acquired property in favour of the Supplier.
13.3. The Purchaser acknowledges and agrees that an Agreement constitutes a security agreement in relation to the Supplier's security interest in all present and after-acquired Goods in accordance with the PPSA. The Purchaser agrees to grant a "Purchase Money Security Interest" to the Supplier.
13.4. For the avoidance of doubt, the Purchaser acknowledges and agrees that it grants to the Supplier a security interest in all Goods (whether now or in the future) and in any proceeds from the sale of those Goods.
13.5. To the extent permitted by law, the following provisions of the PPSA do not apply, and for the purposes of section 115 of the PPSA are contracted out of an Agreement:
13.5.1. section 95 (notice of removal of accession), to the extent that it requires the Supplier to give a notice to the Purchaser, 96 (retain of accession) and 125 (obligation to dispose of or retain collateral);
13.5.2. section 130 (notice of disposal), to the extent that it requires the Supplier to give a notice to the Purchaser;
13.5.3. section 132(3)(d) (contents of statement of account after disposal);
13.5.4. section 132(4) (statement of account if no disposal);
13.5.5. section 135 (notice of retention);
13.5.6. section 142 (redemption of collateral); and
13.5.7. section 143 (reinstatement of security agreement).
13.6. For the purposes of section 14(6) of the PPSA, the Purchaser (and the Supplier) agree that any payments received from the Purchaser by the Supplier pursuant to or in any way connected with an Agreement, will be applied in such order as the Supplier deems fit in its absolute discretion.
13.7. The Purchaser consents to:
13.7.1. and agrees to execute any other document or instrument required to give effect to the security interests created by an Agreement; and
13.7.2. the registration with the relevant authority or public register of any security interest created by an Agreement or any other document required to give effect to a security interest created by an Agreement, including without limitation the registration of a financing statement or financing change statement on the Personal Property Securities Register.
13.7.3. The Purchaser must pay all costs of and incidental to the preparation, execution and registration of any instrument which is executed for the purposes of giving effect to this clause 13 and must also pay all costs incidental to the withdrawal, discharge or release of such instrument.
14. Change of ownership
14.1. The Purchaser shall notify the Supplier in writing where there is any change:
14.1.1. of ownership or management of the Purchaser or its business;
14.1.2. of shareholders (in the case of an unlisted corporate customer);
14.1.3. of directors (in the case of any corporate customer); or
14.1.4. of partners (in the case of a partnership),
which brings about a change in the effective control of the Purchaser or any other change whatsoever affecting an Agreement (including a change in the Purchaser’s commercial structure) within 7 days from the date of such change and indemnify the Supplier against any loss or damage incurred by it as a result of any such change.
15. GST
15.1. For the purposes of this clause 15, “GST” and “tax invoice” have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
15.2. GST will be charged to all relevant Goods and will be payable by the Purchaser at the time of payment, including but not limited to all stock, services, costs, fees, freight charges and any other amounts that become payable by operation of an Agreement.
15.3. For the purposes of clause 15.2, the Purchaser must be provided with a correctly rendered GST tax invoice before making payment to the Supplier for Goods under an Agreement.
16. Trusts
16.1. This clause 16 applies:
16.1.1. if the Purchaser is a trustee, whether acting individually or as part of a group; and
16.1.2. where the Purchaser comprises two or more persons and any of those persons is a trustee,
under an Agreement.
16.2. The Purchaser agrees that even though the Purchaser enters into an Agreement as trustee (Trustee) of a trust (Trust), the Purchaser also shall be liable personally for the performance and occurrence of every covenant to be observed and performed by the Purchaser expressed or implied in an Agreement with the Supplier.
16.3. The Purchaser warrants its complete, valid, and unfettered power to enter into an Agreement pursuant to the provisions of the Trust including power to obtain the credit facility from the Supplier and to enter into the covenants to be observed and performed by them expressed or implied in an Agreement with the Supplier and warrants that its entry into an Agreement is in the due administration of the Trust.
16.4. The Purchaser covenants that the rights of indemnity which it may have against the property of the Trust have not been, and in the future will not be excluded, modified, released, lost or diminished (whether by agreement, breach of trust or otherwise).
16.5. The Purchaser shall not, without the Suppliers’ prior written consent:
16.5.1. resign or be removed as Trustee of the Trust or appoint or allow the appointment of a new or additional Trustee of the Trust;
16.5.2. Amend or revoke any of the terms of the Trust;
16.5.3. Vest or distribute the property of the Trust or advance or distribute any capital of the Trust to a beneficiary or resettle any of the property of the Trust;
16.5.4. permit a beneficiary to have the use, occupation, employment or possession of the property of the Trust;
16.5.5. do or permit or omit to do an act or thing in breach of the Trust or which would permit the Trustee to be removed as Trustee of the Trust;
16.5.6. exercise or permit or allow to be exercised a power to change the vesting date of the Trust or provide for an early determination of the Trust;
16.5.7. lend any money, give any guarantee or incur any debt other than in the ordinary course of business of the Trust; or
16.5.8. pay any of the income of the Trust to any beneficiary of the Trust if such payment will prejudice or affect the Purchaser’s ability to pay all monies due to.
17. Personal Information
17.1. The Supplier agrees to protect and otherwise deal with all personal information (as that term is defined in the Privacy Act 1988 (Cth) (Privacy Act)) in accordance with the Privacy Act and its Privacy Policy (a copy of which can be accessed here, as amended from time to time: https://hsa.com.au/policies/privacy-policy).
17.2. The Purchaser consents to the Supplier from time to time, seeking, advising, exchanging and verifying any personal or commercial information of the Purchaser with any third party and to carrying out any further pertinent investigation about the Purchaser’s contact/address details, credit arrangements, trading terms, credit worthiness, credit standing, credit history or credit capacity, financial status or similar matters.
18. Credit
18.1. Notwithstanding any other provision in these terms, the Supplier may grant credit to the Purchaser under these terms either unconditionally or with any condition it sees fit, including, without limitation, a cap on the amount of credit the Supplier is comfortable extending to the Purchaser. The Supplier may require the Purchaser to enter into a separate credit application form if credit is being granted to the Purchaser.
18.2. The Supplier may increase or decrease any such cap as it sees fit from time to time throughout the duration of this Agreement by notice to the Purchaser in writing.
18.3. If a credit limit is set and then exceeded by the Supplier, such excess will not be a breach of this Agreement by the Supplier.
18.4. In the event that the Supplier serves notice in accordance with clause 18.1 then, apart from any extension, increase or reduction set out in the notice, this Agreement will continue to operate in its amended form.
18.5. However, should the Supplier decide to extend beyond the credit cap in place from time to time, then the cap will in no way act to limit the ability or right of the Supplier to recover any monies owing to it nor will such cap act to limit the liability of the Purchaser to pay those monies to the Supplier.
19. Guarantee and Indemnity by Director(s), Trustee(s), and Guarantor
19.1. In consideration of the Supplier agreeing to supply the Goods to the Purchaser, the Guarantor(s):
19.1.1. unconditionally guarantees to the Supplier the due and punctual performance by the Purchaser of all the Purchaser’s obligations under each and every Agreement including, without limiting the generality of the foregoing, the payment by the Purchaser of all moneys, which term includes, without limitation, principal, fees, interest and costs) payable or repayable (whether presently or in the future, actually or contingently) under each and every Agreement and the Guarantors promise to pay to the Supplier on demand all moneys which the Purchaser defaults in paying under any Agreement including all moneys arising by way of costs, expenses, bank charges, losses or damages incurred by arising from any default by the Purchaser under or relating to any Agreement; and
19.1.2. acknowledges and agrees in the capacity as Guarantor, that any Guarantee and Indemnity previously given, continues to secure any and all liabilities and obligations of the Purchaser/debtor.
20. Intellectual Property Rights
20.1. For the purposes of this Agreement, ‘Intellectual Property Rights’ means copyright, trademark, design, patent, trade secret, secret process, know-how, concept, idea, information, formula, invention, semiconductor or circuit layout rights and any other rights (including software and services) whether or not they are registered or registrable, relevant to, among other things, the textual, graphical, audio and other information, content, data or material used by the Supplier in respect to this Agreement, including all Intellectual Property registered in Australia or any other jurisdiction in the world.
20.2. Any pre-existing Intellectual Property Rights owned by the Supplier before the commencement of this Agreement, will remain vested in the Supplier.
20.3. The Purchaser agrees to grant to the Supplier a non-exclusive, non-transferable, royalty free licence to use the Purchaser’s pre-existing Intellectual Property Rights to the extent that such use relates to any material created by the Supplier pursuant to this Agreement.
20.4. Subject to any Intellectual Property Rights existing in any third party materials, all Intellectual Property Rights, created by the Supplier on or after the commencement of this Agreement will remain vested in the Supplier regardless of whether those rights were created pursuant to or for use in or with the Goods.
20.5. The Purchaser or its personnel, employees or representatives, must not reverse engineer, disassemble, decompile, alter, modify, or develop the Goods provided by the Supplier.
21. Confidentiality
21.1. The parties will keep in confidence all information which it receives from the other parties which is marked in any way so as to indicate its confidentiality or which by its nature is confidential and will not, without prior written consent of the disclosing party, publish, disclose or otherwise make available, directly or indirectly, any item of such information to any person other than its employees, agents, or contractors who need to know the same in the performance of their duties. The receiving party further agrees that it will only use such confidential information in connection with the obligations arising as a result of these Terms & Conditions and any Agreement. Such confidential information does not include any data or information which:
21.1.1. was in the receiving party's lawful possession prior to the submission thereof by the disclosing party;
21.1.2. is later lawfully obtained by the receiving party from a third party under no obligation of secrecy;
21.1.3. is independently developed by the receiving party; or
21.1.4. is, or later becomes, available to the public through no act or failure to act by the receiving party.
22. Notices
22.1. For the purposes of this clause 22:
22.1.1. ‘Business Day’ means a day that is not a Saturday, Sunday or public holiday in Sydney, New South Wales.
22.1.2. ‘Business Hour’ means 9.00am to 5.00pm AEST on a Business Day.
22.2. A notice, consent or communication under these Terms & Conditions is only effective if it is in writing and delivered to a party at their address, as notified from time to time.
22.3. A notice, consent or communication delivered is given and received:
22.3.1. if it is hand delivered or sent by email during Business Hours, on that day;
22.3.2. if it is hand delivered or sent by email outside Business Hours, on the next Business Day;
22.3.3. if it is sent by post within Australia, 6 Business Days after posting; and
22.3.4. if it is sent by post to or from outside Australia, 10 Business Days after posting.
23. Jurisdiction
23.1. The parties agree that these Terms & Conditions, and any Quotation, Agreement, Credit Application, and other agreement between the Supplier and the Purchaser shall be governed by the laws of the State of New South Wales in force for the time being and from time to time, and the parties irrevocably submit generally and unconditionally to the jurisdiction of the Courts of New South Wales in respect of claims, proceedings and matters arising out of or in respect of the aforementioned.
24. Severability
24.1. A provision of these Terms & Conditions which is unenforceable in a jurisdiction shall be ineffective to the extent of the unenforceability without invalidating the remaining provisions of these Terms & Conditions or affecting the validity or enforceability of the provision in another jurisdiction.
25. Miscellaneous
25.1. Nothing in these Terms & Conditions is intended to exclude, restrict or modify rights which the Purchaser may have under Competition and Consumer Act 2010 (Cth) or any other legislation which may not be excluded, restricted or modified by agreement.
25.2. A party waives a right under these Terms & Conditions only if it does so in writing. A party does not waive a right simply because it fails to exercise the right, delays exercising the right or only exercises part of the right. A waiver of one breach of a term of these Terms & Conditions does not operate as a waiver of another breach of the same term or any other term.
25.3. The Supplier may assign or otherwise deal with the benefit of any agreement made pursuant to these Terms & Conditions without the consent of the Purchaser.
25.4. These Terms & Conditions may be varied by notice in writing to the Purchaser, and on the Supplier’s website. Such variation will apply as and from the date the notice is given or any other date within 7 days of the notice, as nominated by the Seller in the notice.
