Terms of trading with VEH

Terms of Trading with Vermeer Equipment Holdings Pty Ltd

  1. DEFINITIONS AND INTERPRETATION

1.1            In these Standard Terms, unless the context or subject matter otherwise requires:

(a)             “Attaches” has the meaning given to it in the PPSA;

(b)             “Australian Consumer Law” means the Australian Consumer Law as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth);

(c)             “Charge” means the charge granted by the Customer in favour of the Company under clause 7.1(a);

(d)             “Charged Property” means all assets, property, rights and undertaking of the Customer of whatever kind and wherever situated held in its own right and as trustee now and in the future, including (without limitation):

(i)              all property (freehold and leasehold), fixed plant and equipment, goodwill, uncalled or unpaid capital (including any share premium), insurance policies, books of account, vouchers and other documents, patents and patentable rights, and trade marks and trade names, designs and other rights of intellectual property;

(ii)             any marketable securities (as defined in section 9 of the Corporations Act) other than marketable securities which are acquired and disposed of in the course of the ordinary day-to-day business of the Customer;

(iii)            all rights under agreements of any kind whatever; and

(iv)            all book and other debts which may be or become due or due and payable to the Customer;

(e)             “Claim” means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, Liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent and “Claims” has a corresponding meaning;

(f)              “Collateral Document” means any Encumbrance, deed or instrument that is supplemental or collateral to the Standard Terms which is intended to provide collateral security (including, without limitation, by means of assignment) for the payment of the Secured Money;

(g)             “Company” means any of the companies in the Vermeer Group being:-

(i)              Vermeer Equipment Holdings Pty Ltd ACN 169 836 533

(h)             “Company’s Agents” means the employees, officers, contractors, subcontractors, servants, agents, representatives and related parties of the Company;

(i)              “Consequential Loss” means any loss, damage or liability in contract, tort (including negligence) or under statute which is either consequential loss, indirect or remote or abnormal or unforeseeable loss, loss of revenue, loss of goodwill, loss of profits, loss of actual or anticipated savings, loss of reputation, lost opportunities, wasted overheads, business interruptions, loss of production, loss of product or loss of use, any exemplary or punitive damages of any kind or any similar loss whether or not in the reasonable contemplation of the parties;

(j)              “Consumer” has the meaning given to it in section 3 of the Australian Consumer Law;

(k)             “Corporations Act” means the Corporations Act 2001 (Cth);

(l)              “Customer” means any partnership, firm, body corporate, organisation, trust or other person or entity that purchases or otherwise acquires Goods from the Company;

(m)           “Customer’s Agents” means the employees, officers, contractors, subcontractors, servants, agents, representatives and related parties of the Customer;

(n)             “Customer’s Premises” means each of the following:

(i)              any premises owned, used or occupied by the Customer for any purpose; and

(ii)             any premises on which any Goods or Security Interest Products are stored or located;

(o)             “Delivery Costs” means costs, expenses and charges incurred by the Company in connection with the delivery of Goods to the Customer, including but not limited to freight costs and insurance charges;

 

(p)             “Dispose of” means:

(i)              sell, transfer, assign, alienate, surrender, dispose of, sub-let, deposit, part with Possession of, or lease; and

(ii)             enter into any agreement or arrangement to do or allow any of the things referred to in subclause (i) of this definition;

(q)             “Encumbrance” means:

(i)              any mortgage, charge, debenture, bill of sale, lien, pledge, trust, writ, warrant, retention of title, security, pledge, deposit of title, security, option to acquire, lease, licence, caveat, preferential interest, preferential right, trust arrangement or other estate, interest, claim or arrangement

(including, without limitation, any set-off or “flawed-asset” arrangement) having the same or equivalent commercial effect as a grant of security relating to property (whether real or personal); and

(ii)             any agreement or document to create or give any arrangement referred to in subclause (i) of this definition;

(r)              “Event of Force Majeure” means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it including (without limitation):

(i)                                a war (declared or undeclared), insurrection, civil commotion, military action, or an act of sabotage;

(ii)             a strike, lockout or industrial action, dispute or disturbance of any kind;

(iii)            an act of a government or a Government Authority;

(iv)            an act of God;

(v)             a storm, tempest, fire, flood, earthquake or other natural calamity; or

(vi)            accidents breakdowns and plant shutdowns;

(s)             “Financing Statement” has the meaning given to it in the PPSA;

(t)              “Goods” means goods, equipment and other items the Company has supplied (or has agreed to supply) to the Customer (including, without limitation, accessories and parts);

(u)             “Government Authority” means any local, State or Federal government, a Minister or government department of each of those governments, a corporation or authority constituted for a public purpose, the holder of an office for a public purpose, a local authority and any agent or employee of any of them;

(v)             “GST” means a tax imposed under the GST Law;

(w)            “GST Law” has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or if that Act does not exist for any reason, means any Act imposing or relating to a GST and any regulation made under it and includes, where the context permits, any ATO ruling or determination;

(x)             “Land” has the meaning given to it in the PPSA;

(y)             “Law” means:

(i)              the common law; and

(ii)             the requirements of all statutes, rules, regulations, proclamations, ordinances, codes and by-laws,

present or future, and whether state, federal or otherwise;

(z)             “Liabilities” means all liabilities (whether actual, contingent or prospective), losses, damages, costs and expenses of whatsoever description;

(aa)          “Order” means an order placed by the Customer for the purchase of Goods as described in clause 2;

(bb)          “Perfected” has the meaning given to it in the PPSA;

(cc)           “Possession” has the meaning given to it in the PPSA;

(dd)          “PPSA” means the Personal Property Securities Act 2009 (Cth);

(ee)          “Proceeds” has the meaning given to it in the PPSA;

(ff)            “Secured Money” means:

(i)              all money which is now or in the future owing (whether actually or contingently) by the Customer in any capacity to the Company either alone or in conjunction with any other person on any account or for any reason whatever including (without limitation) all money owing at any time in connection with the Standard Terms or any Collateral Document;

(ii)             all costs, charges, Liabilities and expenses owed to or incurred directly or indirectly by the Company in relation to the Standard Terms or any Collateral Document (including those which relate to the enforcement or attempted enforcement by the Company of the Standard Terms, the Charge or any Collateral Document);

(iii)            any other money which is acknowledged by the Customer as forming part of the Secured Money whether in the Standard Terms, a Collateral Document or any other agreement or instrument;

(iv)            all other money intended to be secured under the Standard Terms or the Charge (or any agreement or Encumbrance related to or associated with the Standard Terms or the Charge, including without limitation, a Collateral Document); and

(v)             interest accruing from time to time on all of the above money,

irrespective of whether:

(vi)            the Charge or any other Encumbrance created by or in connection with the Standard Terms is or remains valid or is released or discharged;

(vii)           such amounts and liabilities are owing at a particular time or in the future, or whether they are owing actually, prospectively, contingently or otherwise; and

(viii)          any amount or liability is, at any particular time, ascertained or unascertained,

and a reference to “Secured Money” includes the whole or any part or parts of such money;

(gg)          “Security Interest” has the meaning given to it in the PPSA;

(hh)          “Security Interest Product” means each of the following:

(i)              Goods supplied by the Company to the Customer which are the subject of a Security Interest in favour of the Company; and

(ii)             Goods supplied by the Company in which title has not passed to the Customer;

(ii)             “Standard Terms” means these standard terms and conditions (as amended by the Company from time to time) and those terms, if any, which are implied and which cannot be excluded by Law;

(jj)             “Supply” has the meaning given to it in the GST Law; and

(kk)          “Taxable Supply” has the meaning given to it in the GST Law.

1.2            In these Standard Terms, unless the context or subject matter otherwise requires:

(a)             singular includes plural and vice versa;

(b)             any gender includes every gender;

(c)             a reference to a person includes corporations, trusts, associations, partnerships, government authorities, and other legal entities, and where necessary, include successor bodies;

(d)             references to months mean calendar months;

(e)             references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;

(f)              headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of these Standard Terms;

(g)             where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning;

(h)             each clause or subclause in a list is to be read independently from the others in the list;

(i)              a reference to an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and

(j)              a reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns.

  1. ORDERS

2.1            An Order constitutes an offer by the Customer to purchase the Goods specified in the Order on and subject to these Standard Terms.

2.2            The Customer acknowledges and agrees that an Order is irrevocable once accepted by the Company and cannot be cancelled, either wholly or partially, by the Customer without the written consent of the Company (which consent may be given or withheld in the Company’s absolute discretion).

2.3            The Company:

(a)             will not in any circumstances be under an obligation to accept the whole or any part of any Order; and

(b)             may in its sole discretion reject, cancel or terminate any Order made by the Customer at any time without being required to provide a reason for the rejection, cancellation or termination.

2.4            An Order is not binding on the Company unless it is accepted in writing by a duly authorised officer of the Company.

  1. PRICING AND PAYMENT

3.1            The Company may (but is not obliged to) provide a quotation or price list to the Customer in respect of certain Goods, however any such quotation or price list:

(a)             does not constitute an offer by the Company of any kind; and

(b)             is provided as a pricing guide only and is not binding.

 

3.2            Unless otherwise agreed between the Company and Customer in writing:

(a)             all Delivery Costs will be at the Customer’s cost in addition to the purchase price for the relevant Goods; and

(b)             prices are subject to any variations to currency exchange rates and Delivery Costs occurring prior to the time of delivery.

3.3            The Customer acknowledges and agrees that:

(a)             the Customer must pay the amount of each invoice issued by the Company on or before the due date for payment (without set-off, counterclaim, abatement, analogous deduction or otherwise); and

(b)             time is of the essence in respect of payment by the Customer of amounts owing to the Company under or in connection these Standard Terms.

3.4            Without in any way affecting the Company’s other rights, if the Customer does not pay any amount which is payable to the Company by the due date for payment, the Customer must pay to the Company interest:

(a)             calculated at the rate of 14% per annum on the amount remaining unpaid from the due date or dates for payment until those amounts are actually received as clear funds by the Company;

(b)             on any judgment which the Company obtains against the Customer (or any person who has guaranteed the Customer’s obligations under these Standard Terms) from the date of the judgment until the judgment has been satisfied; and

(c)             at the Company’s option, capitalised monthly.

  1. G.S.T.

4.1            Unless otherwise agreed between the Company and Customer in writing, any consideration payable for any Supply under these Standard Terms is exclusive of GST.

4.2            If any Supply made by one party (the “Supplier”) to the other party (the “Recipient”) under or in connection with these Standard Terms is a Taxable Supply:

(a)             the amount payable by the Recipient for that Supply will be increased by the amount of GST payable for that Supply so that the net amount retained by the Supplier after payment of that GST is the same as if the Supplier was not liable to pay any GST in respect of that Supply; and

(b)             the Supplier must issue a GST invoice to the Recipient.

  1. DELIVERY

5.1            Any scheduled time for dispatch and delivery of Goods is an estimate only and the Customer releases the Company from any Liabilities and all Claims which the Customer suffers, incurs or is liable for in connection with any failure or delay in dispatch or delivery.

5.2            Any delay in dispatch or delivery of Goods does not extinguish, reduce or limit the Customer’s obligation to:

(a)             accept the Goods on delivery; or

(b)             pay for the Goods by the relevant due date for payment.

5.3            The risk of loss of or damage to the Goods will pass to the Customer from the earlier of:

(a)             the time that the Goods are delivered to the Customer;

(b)             the time that the Goods are collected by or on behalf of the Customer; or

(c)             the time that the Customer otherwise takes possession of the Goods.

5.4            If the Goods are delivered by or on behalf of the Company to the Customer, the signature, order or acknowledgement of delivery of any manager, operator, employee or person appearing to be in charge of the location at which delivery is made is prima facie evidence of the fact of delivery of the Goods to the Customer and the quantity of Goods delivered.

5.5            If:

(a)             the Goods are delivered by or on behalf of the Company to the Customer; and

(b)             the Customer forms the reasonable opinion that the Goods have been damaged in transit,

the Customer must, within 72 hours of delivery of the Goods to the Customer, give the Company a written notice containing reasonable details of the alleged damage or defect (“Transit Damage Notice”).

5.6            If the Customer does not give the Company a Transit Damage Notice within 72 hours of delivery of the Goods to the Customer then to the maximum extent permitted by law:

(a)             the Customer will be deemed to have accepted the Goods as delivered; and

(b)             the Customer releases the Company from any Liabilities and all Claims in respect of any actual or alleged damage to the Goods caused in transit.

 

  1. TITLE

6.1            Title to all Goods will remain with the Company until the Company has received payment in full for the Goods in clear funds.

6.2            Until such time as the Company has received payment in full for the Goods in clear funds, the Customer:

(a)             acknowledges that it is in a fiduciary relationship with the Company;

(b)             acknowledges that it holds the Goods as bailee for the Company;

(c)             must ensure that the Goods remain clearly identifiable as property of the Company;

(d)             must not remove any identifying marks placed on the Goods by the Company;

(e)             must not part with Possession of the Goods otherwise than in accordance with these Standard Terms (or as otherwise agreed by the Company in writing);

(f)              must store the Goods in a designated area that is separate from all other goods;

(g)             must ensure the Goods are kept in a good and merchantable condition;

(h)             must comply with all requirements of the Company in relation to the storage, maintenance and preservation of the Goods; and

(i)              must not grant, create, give or allow to come into existence any Encumbrance or Security Interest over the Goods (other than an Encumbrance or Security Interest in favour of the Company).

6.3            If the Customer sells or Disposes of (or purports to sell or Dispose of) any Security Interest Product then:

(a)             the Customer does so as a fiduciary for the Company;

(b)             the Proceeds must be kept separate from other money of the Customer;

(c)             the Proceeds will remain the property of the Company to the extent of the money owed to the Company by the Customer and the Customer must account to the Company on demand for that portion of the Proceeds; and

(d)             the Customer stands possessed of those Proceeds on a fixed and specific trust for the Company.

  1. SECURITY FOR PAYMENTS

7.1            As security for the satisfaction of the Customer’s obligations under the Standard Terms and the due and punctual payment of the Secured Money to the Company, the Customer:

(a)             (as beneficial owner) charges in favour of the Company all of the Customer’s right, title and interest in, to, under or derived from the Charged Property; and

(b)             agrees to deliver to the Company a mortgage (in a form acceptable to the Company and on such terms as the Company reasonably considers necessary for the purpose of giving full effect to the Charge) in respect of any Land which forms part of the Charged Property (or any part of it) within 7 days of written demand from the Company together with any other information or documents required to obtain registration of the mortgage.

7.2            The Customer:

(a)             acknowledges and agrees that, by virtue of the Standard Terms and the Charge, the Company has a caveatable interest in all Land which forms part of the Charged Property;

(b)             consents to the lodging of a caveat over any Land the Customer owns to which the Charge attaches and the Customer must immediately on request execute a consent to the lodging of that caveat in registrable form; and

(c)             releases the Company to the maximum extent permitted by law from any Liability or Claim of any kind whatsoever (including Consequential Loss) which the Customer (or any other party) suffers, incurs or is liable for in connection with the lodgement by the Company of a caveat over Land forming part of the Charged Property (or any part of it).

7.3            The Customer:

(a)             acknowledges that if the Company accepts any Order from the Customer or otherwise supplies Goods to the Customer, it does so on the basis that it is obtaining the benefit of the Charge to secure payment of the Secured Money to the Company and the performance by the Customer of the Customer’s obligations under the Standard Terms; and

(b)             must promptly do all acts, matters and things required by the Company to:

(i)              procure the grant of any Encumbrance over the Charged Property as requested by the Company from time to time to provide more effective security to the Company over the Charged Property for the payment of the Secured Money; and

(ii)             enable the Company to protect and exercise its rights under the Standard Terms, any Collateral Document, the Charge or any Security Interest,

including, without limitation, obtaining consents, signing and producing documents, completing documents and supplying information;

(c)             must not Dispose of any Charged Property (other than in the ordinary course of business)  without the Company’s prior written consent; and

(d)             must not grant, create or give any Encumbrance, Security Interest or other interest inconsistent with or in priority to the Company’s rights under the Charge or the Standard Terms without the Company’s prior written consent (which may be withheld by the Company in its absolute discretion).

7.4            If the Company determines that these Standard Terms, a Collateral Document or the Charge (or any agreement or Encumbrance related to or associated with these Standard Terms, a Collateral Document or the Charge) is, contains or creates a Security Interest, the Customer:

(a)             authorises the Company to:

(i)              file all Financing Statements (and other documents); and

(ii)             do all things (including completing and adding schedules to this document to further identify the Charged Property),

which the Company considers, in its sole and absolute discretion, to be necessary or desirable for the purposes of:

(iii)            protecting and preserving the Charged Property and all Security Interest Products;

(iv)            ensuring the Security Interest is Attached, enforceable, Perfected and otherwise effective;

(v)             enabling the Company to apply for registration, or give any notification, in connection with the Security Interest so that the Security Interest has the priority required by the Company; or

(vi)            enabling the Company to exercise its rights in connection with the Security Interest; and

(b)             agrees to promptly do anything which the Company requires for the purposes of:

(i)              protecting and preserving the Charged Property and all Security Interest Products;

(ii)             ensuring the Security Interest is Attached, enforceable, Perfected and otherwise effective;

(iii)            enabling the Company to apply for registration, or give any notification, in connection with the Security Interest so that the Security Interest has the priority required by the Company; or

(iv)            enabling the Company to exercise its rights in connection with the Security Interest,

including, without limitation, obtaining consents, signing and producing documents, completing documents and supplying information.

7.5            The Customer agrees that in respect of any Security Interest Product (and other property that is the subject of a Security Interest in favour of the Company) that is not used predominantly for personal, domestic or household purposes, the following sections of the PPSA do not apply:

(a)             section 95 (notice of removal of accession), to the extent that it requires the Company to give the Customer a notice;

(b)             section 121(4) (enforcement of liquid assets – notice to grantor);

(c)             section 130 (notice of disposal), to the extent that it requires the Company to give the Customer a notice;

(d)             section 132(3)(d) (contents of statement of account after disposal);

(e)             section 132(4) (statement of account if no disposal);

(f)              section 135 (notice of retention);

(g)             section 142 (redemption of collateral); and

(h)             section 143 (reinstatement of security agreement).

7.6            The Customer irrevocably appoints the Company and each of its directors jointly and each of them severally to be the Customer’s duly constituted lawful attorney for the purpose of:

(a)             drawing, executing, registering and enforcing such Encumbrances and securities as required by the Company from time to time including, without limitation, a mortgage or caveat and any ancillary documents necessary to perfect such mortgage or caveat;

(b)             executing on behalf of and in the name of and as the act and deed of the Customer, any document required by the Company under clause 7; and

(c)             doing all other things and sign all other documents required by the Company to give effect to clause 7.

7.7            The Customer must:

(a)             ratify and confirm all acts of each attorney done or made under clause 7.6; and

(b)             pay to the Company on demand the costs, expenses or other liabilities incurred by or on behalf of the Company or an attorney appointed under clause 7.6.

7.8            Each attorney appointed under clause 7.6 has the power at any time to appoint a substitute as the attorney of the Customer.

  1. DEFAULT EVENT

8.1            A Default Event occurs if:

(a)             the Customer fails to pay the Company any payment within 3 days after the due date for payment;

(b)             the Company considers (in its sole and absolute discretion) that the Customer is or will be unable to make any payment required in accordance with the Standard Terms;

 

 

(c)             the Customer does not comply with any one or more of its obligations under the Standard Terms or any Collateral Document; or

(d)             the Customer:

(i)              becomes insolvent or bankrupt;

(ii)             has a controller as defined in the Corporations Act or an analogous person appointed to the Customer or to any of its property;

(iii)            is taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;

(iv)            enters into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors; or

(v)             is affected by any analogous event.

8.2            If a Default Event occurs, then, without in any way affecting the Company’s other rights, the Company may:

(a)             require immediate payment of all amounts outstanding (whether or not then due and payable) and sue for all unpaid amounts irrespective of the due date for payment of such amounts;

(b)             reject, cancel or terminate any Order made by the Customer;

(c)             retake possession of all Security Interest Products without prior notice to the Customer;

(d)             resell any Security Interest Products without prior notice to the Customer and recover any loss or shortfall on resale from the Customer;

(e)             collect, realise and sell the Charged Property to satisfy the Customer’s indebtedness to the Company (or appoint a receiver, administrator or appropriate person to do so); and

(f)              recover from the Customer all Liabilities, costs and expenses (including legal costs on an indemnity basis) incurred or suffered by the Company as a result of the Default Event (including Liabilities, costs and expenses incurred in the recovery or attempted recovery of any overdue amounts or the exercise of the Company’s other rights);

(g)             exercise or enforce all or any of the Company’s rights, powers or remedies:

(i)              conferred by any Law;

(ii)             under or arising in connection with the Standard Terms, the Charge or a Security Interest; or

(iii)            arising in any other way whatsoever; or

(h)             engage in any combination of the above.

8.3            The Customer grants to the Company and the Company’s Agents an irrevocable licence to enter the Customer’s Premises at any time and without prior notice for the purposes of:

(a)             inspecting the Security Interest Products;

(b)             verifying compliance by the Customer with its obligations under these Standard Terms;

(c)             identifying, removing and taking possession of any Charged Property and Security Interest Products in the exercise of its rights under these Standard Terms;

(d)             satisfying the Company’s obligations under these Standard Terms or at Law; and

(e)             exercising the Company’s other rights under these Standard Terms or at Law,

and the Customer agrees to indemnify and keep indemnified the Company (and the Company’s Agents) against all Liability and Claims suffered or incurred by the Company (and the Company’s Agents) in connection with the entry by the Company (and the Company’s Agents) into or upon the Customer’s Premises.

  1. INDEMNITY

9.1            The Customer indemnifies the Company and the Company’s Agents against any Liabilities and all Claims which the Company and the Company’s Agents suffer, incur or are liable for in connection with:

(a)             the use or misuse of the Goods by any person;

(b)             the storage or handling of the Goods by any person;

(c)             any act, omission, negligence or default of the Customer (or the Customer’s Agents);

(d)             a breach of any Law by the Customer (or the Customer’s Agents);

(e)             the occurrence of a Default Event; or

(f)              any injury to or death of any person or any damage to or loss of property resulting from any negligence, wrongful act or omission, or breach of statutory duty by the Customer (or the Customer’s Agents).

  1. LIMITATION OF LIABILITY

10.1         To the maximum extent permitted by Law, the Customer acknowledges and agrees that:

(a)             it has exercised and relied solely on its own independent skill and judgment in acquiring Goods from the Company;

(b)             no advice or representations (other than those given or implied by Law which cannot be excluded) are or have been given (or shall be implied) and the Customer has not relied on any advice or representation made or given by or on behalf of the Company with respect to:

(i)              the acceptable quality, the condition, state of repair, suitability or sufficiency or fitness for purpose of the Goods;

(ii)             the nature or condition of the Goods; or

(iii)            compliance by the Goods with any Laws or any requirements of any government authorities; and

(c)             the Company does not make any guarantees or warranties (whether statutory, express or implied) other than those which are deemed to be given by the Company by virtue of the Australian Consumer Law in respect of the supply of Goods to the Customer under these Standard Terms.

10.2         To the maximum extent permitted by Law, the Customer releases the Company from any Liabilities and all Claims which the Customer suffers, incurs or is liable for in connection with these Standard Terms (or any transaction contemplated by them), including without limitation, any Liabilities and all Claims arising out of or in connection with:

(a)             the rejection, cancellation or termination of any Order by the Company;

(b)             the supply of goods or services by the Company; or

(c)             the exercise by the Company of any of its rights under or in connection with these Standard Terms.

10.3         To the maximum extent permitted by Law, the Company’s liability (under any conditions, guarantee or warranty which cannot legally be excluded) in respect of goods supplied to the Customer is limited to one of the following (at the Company’s option):

(a)             the replacement of the goods or the supply of equivalent goods;

(b)             the repair of the goods;

(c)             the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(d)             the payment of the cost of having the goods repaired.

10.4         To the maximum extent permitted by Law, the Company’s liability (under any conditions, guarantee or warranty which cannot legally be excluded) in respect of any services supplied to the Customer is limited to one of the following (at the Company’s option):

(a)             supplying the services again; or

(b)             the payment of the cost of the having the services supplied again.

10.5         To the maximum extent permitted by Law, the Company will not be liable for Consequential Loss of any kind whatsoever and the Customer agrees to indemnify and keep indemnified the Company in respect of any such liability.

10.6         If:

(a)             the Company supplies goods or services to the Customer; and

(b)             the Customer is taken to have acquired those goods or services as a Consumer under the Australian Consumer Law,

then:

(c)             certain statutory guarantees are (or may be) deemed to be given by the Company under the Australian Consumer Law (which cannot be excluded) in relation to those goods or services; and

(d)             the Customer has (or may have) certain rights under the Australian Consumer Law in respect of any guarantee that is deemed to be given by the Company by virtue of the Australian Consumer Law in relation to those goods or services.

10.7         Any exclusions of warranties, guarantees, representations or liability by the Company under these Standard Terms do not (and do not purport to) exclude statutory rights of the Customer which cannot lawfully be excluded.

  1. FORCE MAJEURE

11.1         If the Company is prevented, hindered or delayed from performing its obligations under these Standard Terms by an event of force majeure (being the occurrence of an event or circumstances beyond the reasonable control of the Company), then as long as that situation continues, the Company shall be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation shall be extended accordingly.

 

  1. GENERAL

12.1         The Company’s right to require strict performance of these Standard Terms will not be affected by any indulgence, waiver of course of dealing, and any waiver will be deemed not to be a continuing waiver.

 

 

12.2         Any assignment of rights or obligations under these Standard Terms by the Customer will be void unless the written consent of the Company is first obtained. The Company may assign any of its rights, benefits or obligations under or connection with these Standard Terms without the Customer’s consent.

12.3         The laws of Queensland apply in respect of these Standard Terms and any supply made in accordance with the Standard Terms.

12.4         If any provision of these Standard Terms should be for any reason invalid or unenforceable, the validity and enforceability of all other provisions will not be affected.

12.5         The Company is entitled to offset any amount owing to it by the Customer against any amount owed to the Customer by the Company.

12.6         These Standard Terms shall apply to the supply of Goods by the Customer to the exclusion of any other terms and conditions contained in any document submitted by the Customer to the extent that such last mentioned terms and conditions are inconsistent therewith or with any rights of the Company (whether express or implied).

12.7         By placing an Order with the Company for the supply of the Goods, the Customer is deemed to have accepted these Standard Terms.