Aussie Terms and Conditions for Supply of Goods and Services
Aussie Trenchless Pty Ltd ATF the Aussie Plant Hire Trust ABN 76 896 042 584
1. DEFINITIONS AND INTERPRETATION
i. “Customer” means any person, firm or company who, or which places an Order with AUSSIE for the sale of Goods, and/or the supply of Services.
ii. “Contract” means a contract formed under clause IV and includes these terms and conditions, Quotations and Orders.
iii. “Goods” means the articles or things, materials, profile, equipment, and spare parts or any of them described in the Order and includes their packaging and any replacement goods.
iv. “Order” means the written or verbal order placed by the Customer for the purchase of Goods or supply of Services.
v. “Quotation” means a written or verbal quotation provided by Aussie to the Customer.
vi. “Scope of Works” means in relation to the Services, a written work scope agreed by Aussie and the Customer.
vii. “Recommended Use” means the operation of equipment & use of materials to the guide lines set out in the process manual.
viii. “Services” means the technical advice and training on products and processes, incl. liner design, estimation or maintenance services given or provided by or on behalf of Aussie in connection with the Goods.
ix. “Aussie” means Aussie Trenchless Pty. Ltd. 6/58 Box Road Taren Point NSW 2229, Australia
x. “Cost Recovery” means a warranty claim for crew site time lost due to the supply of faulty Materials and/or Equipment
xi. “Claim Period” means a period of 60 days after the warranty event
xii. “Cost Reimbursement” means a discount of 5% on all future material sales until the whole cost recovery amount has been reimbursed
xiii. “Normal Period” means a standard working day of 8 hrs duration Monday to Friday
xiv. “Penalty Period” means a period of work outside of a Normal Period
xv. “Labour Cost” means Construction Worker Level 2, CW2 rate as set out by the Fair Work Ombudsman in AP815828CVR – Australian Workers’ Union Construction and Maintenance Award 2002 plus 50% for statutory costs
xvi. “Equipment Costs” means an amount equivalent to “Labour Cost” for a normal working period to cover the equipment depreciation, finance, maintenance, and running cost of onsite equipment to complete the works
xvii. “Material Costs” means the net purchase rate of the materials
xviii. “External Service Cost” means any service provider such as, freight, traffic and/or flow management, cleaning, and CCTV sub-contractors
xix. “Warranty Service Cost” means all freight, loading, transport, delivery, and inspection costs incurred by Aussie to establish the source of the warranty issue on the equipment supplied by Aussie to the client.
The following rules of interpretation apply unless the context requires otherwise:
i. headings are for convenience only and do not affect interpretation;
ii. a reference to a party in a contract or these terms and conditions includes the party’s successors and permitted assigns;
iii. a reference to a right or obligation of 2 or more persons confers that right, or imposes that obligation, as the case may be, jointly and severally;
iv. a reference to any legislation or to any provision of any legislation includes any modification or re- enactment of it, any legislative provision substituted for it and any regulations and statutory instruments issued under it;
v. mentioning anything after includes or including does not limit what else might be included;
vi. no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these terms and conditions.
2. ENTIRE AGREEMENT
a. These terms and conditions govern all Contracts for the sale of ‘Goods’ and /or supply of “Services” by Aussie to the Customer and, except as modified in accordance with clause 2.ii constitute the entire agreement in connection with the sale of “Goods” and/or supply of “Services”. All other terms and conditions, express or implied are excluded to the fullest extent permitted by law including terms and conditions of or provided by the Customer.
b. No modifications or variations to these terms and conditions, included in any Contract, specification or other document, will bind Aussie unless expressly agreed to in writing by an authorized employee of Aussie.
c. These terms and conditions supersede any terms and conditions which have previously governed a Contract for the sale of “Goods” and/or supply of “Services” by Aussie to the Customer.
d. All clerical errors are subject to correction and will not bind Aussie.
e. For the avoidance of doubt, the terms of the United Nations Convention on Contracts for the International Sale of “Goods” will not apply to any Contract.
a. All Quotations by Aussie are valid only for the period stated in the Quotations, but Aussie may vary or withdraw a Quotation at any time.
b. Any Quotation given by Aussie will not constitute a contractual offer, but is only an invitation to treat.
c. Aussie’s brochures and catalogues are published as sources of general information only; they do not constitute contractual offers and are not binding on Aussie.
d. All illustrations, drawings and other documents and all description or data relating to weight, dimensions, performance and consumption and other description or data provided by Aussie are approximate only. Indications of lengths of profile, hoses and similar products are estimates only, to within 5% of the exact measurement
e. The SRP EXP Profile may on occasion be supplied on a drum in split lengths >1000Mtrs long per split length.
f. The customer will be advised if a spilt drum of SRP EXP Profile is being supplied including the split lengths.
g. The SRP EXP Profile may on occasion be supplied short of the total drum holding capacity.
h. Unless otherwise stated, all quotations exclude all costs associated with freight, shipping & loading.
i. These terms and conditions will prevail to the extent of any inconsistency between the Quotation or Order and these terms and conditions.
a. Orders for Goods and/or Services will not bind Aussie until accepted in writing by an authorized employee of Aussie at which time a binding Contract for the sale of Goods and/or Services comes into existence.
b. Aussie reserves the right to accept Orders in whole or in part.
c. Any Order not accepted by Aussie in the manner prescribed will be regarded as having been refused by Aussie.
d. Once Aussie has accepted an Order, the Customer must not alter or modify the Order without obtaining the prior written consent of an authorized employee of Aussie.
a. Aussie will use its reasonable endeavors to provide the Services in accordance with the Scope of Works.
b. If Aussie is required to perform the Services at any of the Customer’s sites:
i. Aussie is responsible for ensuring that its representatives who are present at the relevant site conform with the Customer’s policies and all legislation relating to occupational health and safety; and
ii. the Customer must, at the sites:
- provide a hazard-free environment;
- provide to all of Aussie’s representatives occupational health and safety induction as required by law; and
- comply with all applicable laws and regulations that relate to health and safety at work and any other relevant regulations.
6. INTELLECTUAL PROPERTY
a. Aussie or its related bodies corporate retains legal and beneficial title and copyright to all designs, estimates, drawings, illustrations, photographs and other documents prepared by or on behalf of Aussie. The Customer must not make such document available to any third parties without Aussie’s consent and must be returned to Aussie immediately upon request.
b. The Customer must not use any trade mark or trade names applied to or used by Aussie in relation to the Goods in any manner without Aussie’s prior written approval.
c. Aussie and the Customer agree that the sale and purchase of the Goods does not confer on the Customer any license or rights in respect of any patent, design, trade mark or copyright incorporated or subsisting in any Goods which is the property of Aussie or any of its related bodies corporate.
d. Aussie will deliver Goods and Services which are free of any intellectual property rights of third parties. Aussie is not liable to the Customer for any claims of third parties for infringement of intellectual property rights arising from the delivery of Goods and Services under this Contract in circumstances where infringement is attributable to the conduct of the Customer (for example, if the Customer modifies the Goods or uses the Goods with other products not supplied by Aussie).
e. If a claim is lodged against the Customer by a third party on the grounds of infringement of intellectual property rights as a result of the use of Goods delivered by Aussie under this agreement, then, subject to clause 6.d, Aussie will, at its discretion, either obtain a license for the use of the Goods in question, replace the Goods or modify the Goods such that the intellectual property right is no longer infringed. If Aussie is not able to replace, modify or obtain a license for use of the Goods so as to prevent infringement, the Customer is entitled to cancel the contract or to an abatement under the contract.
a. Unless otherwise agreed in writing, prices for the Goods are ex-works, Taren Point, NSW.
b. Aussie is responsible for making the Goods available at its factory in Taren Point, & will load the Goods.
c. The Customer is responsible for all freight cost associated with delivery of the Goods.
d. The Customer is responsible for all freight, loading, transport & inspection costs to establish the source and resolution of the warranty claim on the equipment supplied to the client by Aussie.
e. The Customer is responsible for all turnover tax, value added tax, goods and services tax, custom duties, levies, surcharges, impositions, storage, handling, insurance or any other charges of any nature whatsoever associated with delivery &/or export.
f. Unless fixed prices have been agreed in writing, the Goods will be supplied at the prices in the quotation.
g. The Customer will be required to issue a written order in accordance with the quotation terms & conditions, if no confirmation of the order is received by Aussie then the quotation will prevail.
h. Services will be supplied at the published rates at the time of the required service.
i. For repeat Orders, prices stated in previous Order confirmations are not binding on Aussie.
j. Prices quoted in published price lists or by the Aussie representatives are subject to change without notice and are not binding on Aussie.
k. Prices quoted do not include the cost of approvals, testing, expert opinions or certificates from regulatory authorities requested by the Customer, these costs which will be charged separately.
l. All prices are in Australian dollars, AUD$ unless otherwise specified.
m. When GST is payable by Aussie in respect of a taxable supply made by Aussie to the Customer, the Customer must pay Aussie, in addition to the GST exclusive price, the amount on account of GST shown in the tax invoice issued by Aussie. The terms “GST”, “supply” and “tax invoice” have the same meaning as under the A New Tax System (Good and Services Tax) Act 1999 (Cth).
n. The price may be adjusted by Aussie if:
i. Aussie carries out additional services outside the Scope of Works or if the Services require changes, deletions or modifications arising from:
ii. requests by the Customer;
iii. site conditions that could not reasonably have been foreseen by Aussie;
iv. a change in legislative requirements or a request or requirement of an authority;
v. an act, occurrence or event not within the control of Aussie including, fire, flood, industrial disputes, government restrictions or other causes which are not reasonably within the control of Aussie; or
vi. any other change outside the reasonable control of Aussie;
vii. or the Services are dependent on services provided by third party to Aussie and the third-party increases the cost of the service.
a. The Customer must make payment for the “Goods”:
i. For SRP EXP Profile & Spiral Lining Equipment
- Upon order 50% deposit of order value
- Before pick up 50% final payment
ii. For spare parts Net 30 days.
b. The Customer must make payment for the “Services”.
i. Net 14 days.
c. or the terms of payment set out in the quotation for those Goods or Services; or
d. if there are no terms of payment set out in the quotation, payment is to be made within 14 days from the date of the invoice.
e. Customer’s supplying a letter of credit as payment security will incur a 3% surcharge on quoted amounts to cover funding costs.
f. The time of payment is of the essence of the contract.
g. If the Customer fails to make payment in accordance with clause 8.a (“due date”), without prejudice to any other remedy, the Supplier may charge interest on any overdue payment at a rate of 1.5% per month (to accrue from day to day). The Customer acknowledges that the interest charge is a genuine pre- estimate of Aussie’s loss attributable to the Customer’s failure to make payment by the due date.
h. If the Customer fails to make payment in accordance with clause 8.a or 8.b (“due date”) or if Aussie is in receipt of a credit reference which it regards in its absolute discretion to be unsatisfactory then it may give notice to the Customer that the Customer must make payment for all Goods & Services prior to dispatch from Aussie’s premises the Goods, and all Services prior to Aussie performing the Services.
i. All payments are to be made by electronic funds transfer and must be made in the currency specified in the invoice. Bank and discount charges are the responsibility of the Customer. Bills of exchange will only be accepted with the prior written agreement of Aussie.
j. All payments must be made without deduction or set off of any kind, unless a right to deduction or set off has been agreed in writing and is not disputed by Aussie, and has been established by a judgment of a court.
k. If the circumstances described in clauses 15 or 18 occur, all unpaid balances owing to Aussie by the Customer will become a debt immediately due and payable to Aussie despite any other provision in these terms and conditions.
l. The Customer indemnifies Aussie on demand against all costs, charges, expenses and legal costs incurred by Aussie in recovering sums owed by the Customer.
m. Aussie is not obliged to make delivery on any unfilled Order before the payment of due invoice amounts (including any default interest) has been paid in full to Aussie.
n. Aussie will not be deemed to be in default on a delivery as a result of Clause 8.m.
9. RENTENTION OF TITLE
a. Aussie will retain property in and title to all Goods supplied to the Customer until Aussie has received payment in full for those Goods and all the Services.
b. Until property in and title to the Goods passes to the Customer under clause 9.a:
i. the Customer will hold the Goods as fiduciary bailee and agent for Aussie;
ii. the Customer will insure the Goods against all usual risks and for full replacement value and the Customer will hold on trust for Aussie any insurance monies received by the Customer for Goods owned by Aussie;
iii. the Customer will store the Goods separately, clearly identified as Aussie’s property and in a manner to enable them to be identified;
iv. the Customer will not pledge or allow any lien, charge, Security Interest (as defined by clause 16) or other interest to arise over the Goods;
v. the Customer may sell the Goods in the ordinary course of business, provided that the Customer will be agent for Aussie in any sale if Goods are sold. The Customer must account to Aussie for part of the proceeds of any such sale equal to the amount owing by the Customer to Aussie for those Goods and must hold these proceeds on trust for Aussie. Aussie will not be bound by any contract between the Customer and the Customer’s purchaser; and
vi. Where the Customer processes or commingles the Goods into other goods or property, Aussie takes title to the other goods and or property as well.
c. Aussie’s other rights as an unpaid seller will not be affected by Aussie retaining title to Goods supplied until the Goods have been paid for in full by the Customer.
i. the Customer has not paid the purchase price to Aussie for the Goods by the due date; or
ii. the Customer has not paid the purchase price for the Goods and the Customer enters into bankruptcy, liquidation, a composition with its creditors, has a receiver or manager appointed over all or any part of its assets, enters into administration, or becomes insolvent,
e. The Customer must deliver the Goods to Aussie upon demand.
i. If the Customer does not comply with a demand within 48 hours of receipt, Aussie may enter the Customer’s premises at any time to do all things necessary in order to take possession of the Goods.
ii. The Customer will also pay on demand all costs, including legal costs on a full indemnity basis associated with the exercise of Aussie’s rights under this clause.
10. TRANSFER OF RISK
a. The Goods are at the Customer’s risk upon dispatch from Aussie’s factory, even if transportation is undertaken by Aussie (whether gratuitously or for consideration), or Aussie has agreed to pay freight or carry out installation.
b. Insurance against loss of or damage to the Goods in the course of transit will be effected by Aussie only if requested in writing by the Customer and will be charged to the Customer’s account.
c. Aussie will not be liable for any loss of or damage to the Goods in the course of transit, whether due to Aussie’s negligence or otherwise.
d. If dispatch is delayed due to circumstances beyond Aussie’s control, the risks are transferred to the Customer from the time the Customer is notified (whether in writing or orally or otherwise) of the readiness of the Goods for dispatch. Aussie will however effect that the insurance will be for the Customer’s account.
e. Despite any other clause in these terms and conditions, Aussie is not liable to the Customer in the event of any failure to arrange insurance.
11. DELIVERY AND DISPOSAL OF GOODS
a. The delivery period will begin on the date when all details pertaining to the Order have been confirmed and the deposit is received
b. The delivery period will be deemed to be complied with when Aussie notifies the Customer that the Goods are ready for dispatch.
c. Delivery dates are estimates only, unless confirmed by Aussie to be binding in writing.
d. If owing to industrial disputes, operational breakdowns, delayed supply of raw materials or operating materials, strikes, lock-outs or any other cause beyond Aussie’s control (whether of a like nature or not) Aussie is unable to deliver the Goods or complete the Services within the delivery period then Aussie will be entitled to a reasonable extension of time which at the very least will be equal to the time lost by reason of the intervening cause or circumstance. This applies even where the delivery period has already been exceeded at the time of occurrence of any of the above. If any intervening cause or circumstances render delivery of the Goods or Services impossible or unreasonable, then the Customer may cancel the contract without notice unless the risk in the Goods has transferred to the Customer under clause 10.a. The Customer will remain liable for payment for partial delivery of goods.
e. If modifications are requested by the Customer after Aussie has accepted the Order, the delivery period will begin on the day when all further details pertaining to the Order have been clarified.
f. If Aussie and the Customer agree on a down payment, or the use of a bank guarantee or letter of credit, then the delivery period will begin when Aussie receives payment and the relevant documents.
g. Aussie may be entitled to make delivery by instalments and these terms and conditions will be severable as to such instalments. All such instalments, when separately invoiced, will be paid for by the Customer independent of the delivery of subsequent instalments.
h. Compliance with the delivery period by Aussie is subject to the fulfilment of the Customer’s contractual obligations. If delivery is delayed in circumstances for which the Customer is responsible, the Customer will be liable for the costs caused by the delay, commencing one month after the Customer has been advised by Aussie of the readiness of the Goods for dispatch.
i. Compliance with the delivery period by Aussie is subject to punctual deliveries from Aussie’s suppliers.
j. Delay in delivery or any other default in respect of a delivery will not relieve the Customer from any obligation to accept or pay for Goods that have been delayed or in respect of any other delivery.
k. Subject to clause 11.a, delivery dates will not be varied once they have been agreed, without the prior written consent of an authorized employee of Aussie. If Aussie agrees to postpone delivery, the relevant Goods will be stored at the Customer’s risk and Aussie reserves the right to impose a weekly storage charge of 5% of the net invoice value. Where delivery is postponed for more than 3 months, Aussie may increase the price for the Goods at Aussie’s discretion, to reflect Aussie’s then current list price.
l. The Customer undertakes to dispose of the delivered Goods at its own expense and in accordance with the local laws and regulations. The Customer undertakes to ensure compliance with this clause by a third party if title to the Goods has been transferred.
a. Aussie warrants that, provided they are operated by suitably qualified and trained personnel and in accordance with Aussie’s “Recommended Use” guide lines as set out in the manual, the Goods will be ‘Fit for Purpose’, and free of defects;
i. From the date of risk transferring to the Customer under clause 10.a;
- Warranty on Equipment is for 12 months if correctly used
- Warranty on Spare Parts is for 2 months if correctly stored
- Warranty on Materials is for 12 months if correctly stored
ii. The limitation in clause 12.a does not apply in the case of a willful or grossly negligent breach of obligation by Aussie or fraudulent concealment of a defect.
b. The following applies where the Customer is purchasing the Goods as a “consumer” under the Australian Consumer Law.
i. “Our goods come with guarantees that cannot be excluded under the ACL”.
ii. “You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage”.
iii. “You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
c. The Customer must notify Aussie promptly within the “Claim Period” and in writing of a warranty claim.
i. The notification is a mandatory procedure for a warranty claim to be considered;
- Initially by phone to advise of the possible warranty event/issue
- Immediately SMS photos of warranty event/issue
- In writing within the “Claim Period”
d. Aussie, in its sole discretion, will confirm whether the “Goods” must be returned to Aussie or if Aussie will attend the Customer’s premises.
i. Written notices must be sent to: Aussie Trenchless Pty Ltd, 6/58 Box Road, Taren Point, NSW 2229.
ii. Warranty questions can also be directed to +61 418 691 989 or [email protected]
iii. All costs associated with “Warranty Service Costs” will be charged by Aussie & paid by the client.
e. Warranty Claims received after the “Claim Period” will be rejected.
f. All returns must be accompanied by the invoice number under which the Goods were supplied and the date of purchase.
g. The warranty period for replacements or repaired parts is 3 months but will not affect the warranty period of the original Goods supplied.
h. The warranty period of the original Goods supplied will be extended by the period of time which any interruption in the Customer’s operation is caused by the repair or replacement.
i. Where notice of a defect has in Aussie’s opinion been justifiably given, Aussie’s liability on Customer “Cost Recovery” is limited in accordance with clause 13.a.
j. To the extent permitted by law, all other costs will be borne by the Customer.
k. This warranty is in addition to and does not limit, exclude or restrict the Customer’s rights under the Competition and Consumer Act 2010 (Cth) or any other law that may apply.
l. The Customer will have no claim under this warranty:
i. for only slight deviations from the quality and serviceability agreed upon;
ii. for natural wear or damage occurring after the transfer of risk;
iii. the operation of the “Goods” is outside of Aussie’s “Recommended Use” guide lines
iv. the operation of the “Goods” is carried out by unqualified and/or untrained personnel
v. as a result of faulty or negligent handling, excessive strain, the use of unsuitable working materials, atomic radiation or on account of particular outside influences which are not provided for in the contract;
vi. for damage occurring due to the incorrect operation of ancillary equipment and machinery;
vii. if modifications, maintenance or repairs are carried out improperly by the Customer or third parties.
viii. Proper handling includes among other things the necessary compliance with our mounting, operating and maintenance instructions, proof of which must be furnished by the Customer.
m. We will use reasonable endeavors to pass on to the Customer any warranties given by manufacturers of other equipment supplied under these terms and conditions.
a. Where there are guarantees prescribed by law that cannot be excluded, then to the fullest extent permitted by law, any liability of Aussie to the Customer including but not limited to the liability for special, consequential, indirect or incidental damages or for breach of any term, condition, warranty, undertaking, inducement, guarantee or representation whether express, implied, statutory or otherwise relating to this Contract or to the Goods or Services will be limited at Aussie’s option, to any one or more of the following:
i. in the case of a claim for “Cost Recovery”: the basis must be in accordance with clause 1.a Definitions.
- lost time claims for a “Normal Period” will only be considered
- recovery of “Labour Cost”, “Equipment Costs”, “Material Costs” will be considered as setout in clause 1.a Definitions
- a claim for recovery of “External Service Costs” will not be considered
- a claim for recovery of labour in any “Penalty Period” will not be considered
- payment of any “Cost Recovery “claim will be as per the “Cost Reimbursement” clause 1.a Definitions
ii. in the case of the “Goods”:
- the replacement of the Goods or the supply of equivalent goods to the Goods;
- the repair of the Goods;
- the return of Goods for credit on an agreed basis;
- the payment of the cost of replacing the Goods or acquiring equivalent goods to the Goods; or
- the payment of the cost of having the Goods repaired; and
iii. in the case of “Services”:
- the supplying of the Services again; or
- the payment of the costs of having the Services supplied again.
b. To the fullest extent permitted by law and subject to clause 13.a, Aussie will under no circumstances be liable to the Customer for any loss, damage or expense, sustained or incurred by the Customer or any other party, whether direct or indirect, special, consequential, incidental or punitive losses or damages whether in contract, tort (including without limitation negligence), equity, under statute or on any other basis, and whether or not such loss or damage was foreseeable. The term “consequential damages” will include economic loss including actual or anticipated profits, business interruption, loss of use, revenue, reputation and/or data, costs incurred, and loss or damage to property or equipment.
c. In all other circumstances and to the fullest extent permitted by law, Aussie’s liability is limited, unless otherwise agreed, to the amount recoverable under its public liability insurance, the amount covered being AUD$10,000,000.00 for personal injury and damage to property.
14. CUSTOMERS’S RIGHT TO RESCIND
a. The Customer will be entitled to terminate the Contract if:
i. Aussie is materially in default of delivery within the meaning of clause 11; and
ii. the Customer has granted Aussie a reasonable extension of time with the express statement in writing that upon expiration of the extension period the Customer would not accept the Goods under the Contract; and
iii. the extension period has expired
b. The Customer will be entitled to terminate the Contract if through any fault of Aussie, a reasonable period of time has been granted to Aussie to rectify a defect for which Aussie is responsible under the terms and conditions of the Contract but the period of time has elapsed without any rectification being effected. The Customer will also be entitled to terminate the Contract if it is impossible or Aussie is unable to rectify the defect.
c. A “Request for the Return of Goods for Credit” form must be submitted, and the request approved, before returning Goods for credit.
i. All Goods returned for credit without authority will be returned at the Customer’s cost.
ii. A 10% restocking charge will apply to all items returned for credit.
d. All other rights of the Customer are excluded.
15. AUSSIE’S RIGHT TO RESCIND
a. In the event of unforeseen circumstances within the meaning of clause 11, Aussie will be entitled to rescind the Contract and the Customer will not be entitled to claim any damages.
b. Aussie reserves the right immediately to terminate or suspend Aussie’s performance of the whole or part of any Contract for the supply of Goods and/or Services without incurring any liability to the Customer in any of the following circumstances
i. the Customer fails to take delivery of or to pay for Goods and/or Services by the due date or otherwise breaches any other term of the Contract or these terms and conditions;
ii. the Customer enters into bankruptcy, liquidation or a composition with its creditors, has a receiver or manager appointed over all or any part of its assets, enters into administration or becomes insolvent;
iii. Aussie notifies the Customer of having reasonable grounds for suspecting that an event in clause 15.b.ii has occurred or will occur, or that the Customer will not pay for Goods and/or Services on the due date;
iv. there has been a substantial increase in Aussie’s costs of manufacture and supply of Goods and/or Services between the date of the Contract and the date of delivery or dispatch arising from circumstances beyond Aussie’s reasonable control where the Contract is for a fixed price and Aussie and the Customer have failed to reach agreement on a reasonable adjustment in the price for remaining deliveries to recognize such increase within 30 days of Aussie notifying the Customer of such increase; or contractual performance by either Aussie or the Customer is delayed or prevented due to any cause or circumstance.
c. Termination by Aussie under clause 15.a & 15.b is without prejudice to prejudice to Aussie’s other remedies and Aussie’s right to recover payment from the Customer for any Goods and/or Services previously provided by Aussie.
a. In this clause 16:
i. “PPSA” means the Personal Property Securities Act 2009 (Cth); and
ii. the terms “Proceeds”, “Register”; “Purchase Money Security Interest”; “Security Agreement”; “Security Interest”; “Verification Statement”; “Financing Statement” and “Financing Change Statement” will have the meanings given to them in the PPSA.
b. The Customer:
i. acknowledges that these terms and conditions and each Contract constitutes a Security Agreement for the purposes of the PPSA;
ii. grants a security interest to Aussie in all Goods (and the Proceeds) previously supplied by Aussie to the Customer and in all future Goods (and the Proceeds) supplied by Aussie to the Customer; and
iii. acknowledges that the Security Interest granted in accordance with this clause is a Security Interest for the purposes of the PPSA.
c. The Customer:
i. acknowledges that Aussie may register its Security Interest in the Goods (and the Proceeds) as a Purchase Money Security Interest on the Register; and
ii. must execute documents and do such further acts and things and provide such further information as may be required by Aussie to enable registration of the Security Interest granted by the Customer on the Register, or to perfect or correct any registration.
d. The Customer agrees that to the fullest extent permitted by law, Aussie owns, and the Customer waives any rights it may have to anything installed in or affixed to the Goods, including any rights it might otherwise have under Part 3.3 of the PPSA.
e. The Customer agrees that where the PPSA applies to action taken by Aussie in relation to the Goods, the Customer:
i. agrees that sections 116(2), 120, 125, 142 and 143 of the PPSA will not apply; and
ii. waives its right to receive any notices Aussie is required to give the Customer under the PPSA (to the extent that the notice can be excluded) and includes any right to receive a notice under sections 95, 118(1)(b), 121(4), 123(2), 130, 132(3)(d), 132(4) and 135 of the PPSA and any Verification Statements.
The Customer must not assign or transfer the Contract or any part of it to any other party without Aussie’s prior written consent.
a. If the Customer
i. being an individual, at any time becomes bankrupt, or has a receiving order or administration order made against the Customer or makes any composition or arrangement with, or for the benefit of the Customer’s creditors, or makes any conveyance or assignment for the benefit of the Customer’s creditors or purports to do so, or any application is made under the relevant insolvency laws in force for sequestration of the Customer’s estate, or a trust deed is granted by the Customer on behalf of the Customer’s creditors; or
ii. being a company, passes a resolution, or the court makes an order that the company be wound up (not being a member’s winding up for the purpose of reconstruction or amalgamation) or if a receiver, or manager on behalf of a creditor, is be appointed, or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager, of which entitle the court to make a winding-up order, then Aussie will:
- to reject the Order summarily by notice in writing without compensation to the Customer, or
- to give any such receiver or liquidator or other person the option of carrying out the Contract.
iii. The exercise of any of the rights granted to Aussie under clause 18.a.i hereof will not prejudice or affect any right of action or remedy which has accrued or will accrue to Aussie.
In the event that any provision of this Contract is void or legally unenforceable, it will be severed from the remaining provisions of this Contract, which remain valid and binding between the parties.
20. DISPUTE RESOLUTION
a. Any dispute arising out of or in connection with this Contract, including any question regarding its existence, validity or termination, will be referred to and finally resolved by arbitration in Australia in accordance with the Commercial Arbitration Act 2010 (NSW) which rules are deemed to be incorporated by reference into this
b. The governing law of this Contract will be the law of New South Wales, Australia, and both parties submit to the non-exclusive jurisdiction of the courts of that