Terms & Conditions

1. Definitions

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1.1 "Seller" means Titan Door Systems, its successors, assigns or any person acting on behalf of and with the authority of Titan Door Systems.
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1.2 "Customer" means the person, company, trust, partnership, entity or other legal person purchasing the Goods or Services from the Seller as specified in any quotation, order, invoice or other contractual document and, where there is more than one Customer, means each Customer jointly and severally.

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1.3 "Goods" means all goods, products, equipment, materials, components, fabricated items, replacement parts and associated items supplied by the Seller, whether supplied separately or as part of the Services.
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1.4 "Services" means all services supplied by the Seller including, but not limited to, design, engineering, drafting, manufacture, fabrication, procurement, delivery, installation, commissioning, programming, testing, repairs, servicing, maintenance, inspections, certification, consultation and any associated works.
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1.5 "Price" means the price payable for the Goods and/or Services as agreed between the Seller and the Customer in accordance with Clause 4, including any approved Variations.
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1.6 "Variation" means any change to the scope of the Goods or Services including any increase, decrease, omission, substitution, redesign, delay, acceleration, remobilisation, additional attendance, additional documentation, additional commissioning, or any other change affecting the Seller's cost, risk, programme or obligations.
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1.7 "Site" means the land, premises or location where the Goods are to be delivered, installed, commissioned, serviced or otherwise provided.
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1.8 "Seller Documents" means these Terms and Conditions, the Seller's Terms of Warranty, Operation and Maintenance Manuals, Service Agreements, quotations, approved shop drawings, engineering drawings, specifications, commissioning documentation, maintenance schedules, product literature, technical bulletins and any other document issued by the Seller relating to the Goods or Services.
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1.9 "Works" means all work undertaken by the Seller under the Contract including the supply of Goods, provision of Services and any Variations.
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1.10 "Commissioning" means the process undertaken by the Seller to inspect, test, adjust, program and verify that the Goods operate in accordance with the Seller's scope of works, excluding any testing or certification of systems or equipment supplied by others unless expressly included within the Seller's quotation.

1.11 "Practical Completion" means the stage at which the Seller has completed the Works sufficiently for the Goods to be used for their intended purpose, notwithstanding the existence of minor defects, omissions, adjustments, commissioning items or defects liability items which do not materially prevent the intended use of the Goods.
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1.12 "Business Day" means a day other than a Saturday, Sunday or public holiday in the State or Territory in which the Seller's principal place of business is located.
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1.13 Unless the context otherwise requires:

1. words importing the singular include the plural and vice versa;
2. headings are for convenience only and do not affect interpretation;
3. references to legislation include all amendments, replacements and subordinate legislation;
4. references to a person include corporations, partnerships, trusts, government authorities and other legal entities; and
5. obligations imposed upon more than one person bind them jointly and severally.

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2. Acceptance

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2.1 The Customer is deemed to have accepted these Terms and Conditions immediately upon the earlier of:

1. requesting, accepting or placing an order for any Goods or Services;
2. accepting any quotation, proposal or estimate issued by the Seller;
3. providing a purchase order or other instruction to proceed;
4. approving shop drawings, engineering drawings, specifications or any Seller Documents;
5. paying any deposit, progress payment or invoice;
6. requesting the Seller to commence manufacture, procurement, engineering, drafting, programming, fabrication, installation, commissioning or any other Services;
7. accepting Delivery of any Goods; or
8. otherwise conducting itself in a manner that indicates acceptance of these Terms and Conditions.

2.2 These Terms and Conditions constitute the entire agreement between the Seller and the Customer relating to the Goods and Services and supersede all prior negotiations, discussions, representations, understandings, correspondence, quotations, purchase conditions and agreements, whether written or oral, except where expressly agreed by the Seller in writing.

2.3 These Terms and Conditions are to be read in conjunction with the Seller's Terms of Warranty, Operation and Maintenance Manual, Service Agreements, quotations, approved shop drawings, engineering drawings, specifications, commissioning documentation, maintenance schedules, product literature, technical bulletins and all other Seller Documents issued from time to time. In the event of any inconsistency, these Terms and Conditions shall prevail unless the Seller expressly agrees otherwise in writing.

2.4 The Customer acknowledges that it has had the opportunity to request and review all Seller Documents prior to entering into the Contract. Failure by the Customer to request, obtain or review any Seller Document shall not limit, vary or exclude the operation of these Terms and Conditions or any obligation imposed upon the Customer.

2.5 No terms or conditions contained in any purchase order, subcontract, work order, tender document, head contract, project specification, payment schedule, electronic procurement system or other document issued by the Customer shall amend, vary or override these Terms and Conditions unless expressly accepted by the Seller in writing and signed by a Director of the Seller.

2.6 The Seller expressly rejects any term proposed by the Customer that is inconsistent with these Terms and Conditions, including any "pay when paid", "pay if paid", back-to-back liability, liquidated damages, fitness for purpose obligations, design obligations, consequential loss provisions, extended warranties, indemnities or other obligations not expressly accepted by the Seller in writing.

2.7 No representation, statement, promise, advice or undertaking made by or on behalf of the Seller shall be binding unless expressly incorporated into the Contract in writing.

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2.8 The Customer acknowledges that it has not relied upon any representation, warranty or statement made by the Seller other than those expressly contained within the Contract and the Seller Documents.

2.9 Any failure by the Seller to enforce any provision of these Terms and Conditions shall not constitute a waiver of any right or remedy and shall not prevent the Seller from enforcing that provision or any other provision at any later time.

2.10 No variation, amendment or waiver of these Terms and Conditions shall be valid unless made in writing and signed by a Director or other duly authorised representative of the Seller.

2.11 Where the Customer engages the Seller under a subcontract or purchase order incorporating a head contract or principal contract, the Seller shall only be bound by those provisions of the head contract that are expressly identified, provided to the Seller prior to execution, accepted by the Seller in writing and are not inconsistent with these Terms and Conditions. Any purported incorporation by reference of an entire head contract shall be ineffective unless expressly accepted by the Seller in writing.

2.12 If any provision of these Terms and Conditions is found to be illegal, invalid or unenforceable, that provision shall be severed to the minimum extent necessary and the remaining provisions shall remain in full force and effect.

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3. Electronic Transactions Act 2000

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3.1 The Customer agrees that the Seller may communicate with the Customer by electronic means including, but not limited to, email, electronic procurement systems, cloud-based collaboration platforms, electronic signature platforms, online portals, mobile applications and other electronic communication methods.
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3.2 Pursuant to the Electronic Transactions Act 2000 (or the corresponding legislation applicable within the relevant jurisdiction), the Customer consents to the use of electronic communications and acknowledges that electronic communications satisfy any requirement for communications to be in writing.
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3.3 The Customer acknowledges and agrees that any quotation, acceptance, purchase order, instruction to proceed, variation, notice, invoice, payment claim, statutory declaration, warranty documentation, commissioning documentation, shop drawing approval, engineering approval, operation and maintenance manual, certificate, report or other document transmitted electronically shall have the same legal force and effect as if it had been executed in hard copy.
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3.4 The Customer acknowledges that approval of any document by email, electronic signature, electronic procurement platform, online collaboration platform or other electronic means shall constitute acceptance of that document and shall authorise the Seller to proceed with the relevant Goods or Services.
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3.5 The Customer acknowledges that an electronic approval of shop drawings, engineering drawings, specifications, samples, finishes, colours, programming, layouts, dimensions or any other Seller Document constitutes confirmation that the Customer has reviewed and accepted the document for manufacture or construction purposes. The Seller shall not be responsible for any errors, omissions or discrepancies contained within documents approved by the Customer.
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3.6 The Customer acknowledges that electronic records maintained by the Seller, including emails, electronic correspondence, document revision histories, procurement platform records, cloud storage records, metadata, audit logs, electronic signatures and server records, shall constitute prima facie evidence of communications and transactions between the parties.

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3.7 The Customer shall ensure that all email addresses and electronic contact details supplied to the Seller remain current and operational. Any communication sent by the Seller to the Customer's last nominated electronic address shall be deemed to have been received on the day of transmission unless the Seller receives an automated notification confirming that delivery was unsuccessful.

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3.8 The Customer assumes all risks associated with the unauthorised use of its email accounts, electronic procurement systems, electronic approval systems or other communication platforms, except where such unauthorised use results directly from the Seller's wilful misconduct.

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3.9 The Seller shall not be liable for any delay, corruption, interception, non-delivery or transmission failure of any electronic communication arising from circumstances beyond the Seller's reasonable control, including failures of telecommunications providers, internet service providers, cloud hosting services, cyber incidents affecting third-party providers or Customer-controlled systems.

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3.10 Nothing in this clause limits the Seller's right to require any document, agreement or instruction to be executed in hard copy where the Seller reasonably considers such execution necessary.

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4. Price and Payment

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4.1 At the Seller's sole discretion the Price shall be either:

1. as indicated on any quotation, proposal, tender, purchase order confirmation or invoice issued by the Seller;
2. the Seller's prevailing rates at the date the Goods or Services are supplied; or
3. where the scope of the Works cannot reasonably be determined in advance, calculated on the basis of the actual labour, materials, plant, equipment, subcontractors, transport and other costs incurred by the Seller, together with the Seller's applicable margins.

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4.2 The Seller reserves the right to vary the Price at any time before completion of the Works where additional costs are incurred as a result of, including but not limited to:

1. any Variation requested by the Customer;
2. changes to the scope of the Works;
3. changes to plans, drawings, specifications, engineering, programming or design;
4. latent conditions;
5. unforeseen Site conditions;
6. hidden services or obstructions;
7. structural defects or inadequacies;
8. inaccurate information, dimensions or documentation supplied by the Customer or others;
9. delays caused by the Customer, the Principal, the Superintendent or any third party;
10. restricted Site access;
11. failed attendances;
12. suspension of the Works;
13. remobilisation;
14. acceleration of the Works;
15. after-hours work requested or required by others;
16. additional inductions, permits, security clearances or Site requirements;
17. increases in labour costs;
18. increases in material costs;
19. increases in freight, transport or fuel costs;
20. exchange rate fluctuations affecting imported components;
21. changes in legislation, Australian Standards, Building Codes, regulations or authority requirements;
22. delays in obtaining approvals not caused by the Seller;
23. additional testing, inspections or certifications;
24. force majeure events;
25. any matter beyond the Seller's reasonable control; or
26. any circumstance which increases the Seller's cost, time, risk or contractual obligations.

Any such increase shall constitute a Variation and shall be payable by the Customer.

4.3 Unless otherwise stated in writing, all quotations are valid for thirty (30) days from the date of issue and may be withdrawn, amended or reissued by the Seller at any time prior to acceptance.

4.4 Unless expressly stated otherwise, all Prices are exclusive of Goods and Services Tax (GST), freight, cranage, traffic management, permits, storage, temporary works, authority fees and any other government charges, all of which shall be payable by the Customer where applicable.

4.5 The Seller may require payment of a deposit prior to commencing any Works. The amount of any deposit shall be determined by the Seller in its absolute discretion.

4.6 The Seller may submit progress claims at intervals determined by the Seller or upon completion of identifiable stages of the Works, including but not limited to:

1. design;
2. engineering;
3. shop drawings;
4. procurement;
5. manufacture;
6. fabrication;
7. delivery;
8. installation;
9. commissioning; and
10. Practical Completion.

4.7 Payment shall be made strictly in accordance with the payment terms specified on the Seller's quotation, invoice or credit agreement and, unless otherwise agreed in writing, time for payment shall be of the essence.
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4.8 The Customer shall not withhold, delay, reduce, set-off or retain payment for any reason whatsoever, including the existence of alleged defects, omissions, warranty claims, disputes, liquidated damages, back charges, counterclaims or claims against any third party, unless required by law.

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4.9 Where the Customer disputes any part of an invoice, the Customer shall:

1. notify the Seller in writing within five (5) Business Days of receipt of the invoice;
2. clearly identify the disputed amount and the reasons for the dispute; and
3. pay the undisputed portion of the invoice by the due date.

Failure to comply with this clause shall constitute acceptance of the invoice.
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4.10 The Seller may appropriate any payment received from the Customer against any outstanding invoice or debt in such order as the Seller determines, notwithstanding any direction provided by the Customer.
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4.11 The Seller may suspend manufacture, procurement, delivery, installation, commissioning or any other Works immediately upon any overdue payment without liability for delay, disruption or consequential costs. Any costs associated with suspension and recommencement shall constitute a Variation payable by the Customer.
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4.12 If the Customer requests the Seller to accelerate the Works, work outside normal business hours or increase resources to meet revised programme requirements, the Customer shall pay all additional costs incurred by the Seller.
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4.13 Certification, Practical Completion, occupancy, beneficial use, handover, commissioning by others or use of the Goods shall not affect the Customer's obligation to make payment in accordance with these Terms and Conditions.

4.14 The Seller reserves the right to issue separate invoices for Goods, Services and Variations and each invoice shall constitute a separate payment obligation.

4.15 Receipt of payment by the Seller shall not constitute acceptance of defective work performed by others, approval of Site conditions or waiver of any right available to the Seller under these Terms and Conditions.

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5. Delivery of Goods

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5.1 Delivery ("Delivery") shall be deemed to have occurred immediately upon the earlier of:

1. the Goods being delivered to the Site or to any location nominated by the Customer;
2. the Goods being collected by the Customer or the Customer's carrier;
3. the Goods being made available for collection by the Customer;
4. the Seller delivering the Goods to a carrier, freight provider or other third party nominated by or on behalf of the Customer;
5. the Seller completing installation of the Goods; or
6. the Customer taking possession, control or beneficial use of the Goods.

5.2 Any time or date specified by the Seller for Delivery is an estimate only and shall not be construed as a contractual obligation unless expressly agreed by the Seller in writing.

5.3 The Seller shall not be liable for any loss, damage, delay, liquidated damages, consequential loss, disruption, loss of profit or additional costs arising from any delay in Delivery where such delay results from:

1. manufacturing delays;
2. shortages of materials or components;
3. transport or freight delays;
4. industrial disputes;
5. supplier delays;
6. import or customs delays;
7. adverse weather;
8. Site access restrictions;
9. delays caused by the Customer, Principal, Superintendent or other contractors;
10. changes in the scope of the Works;
11. authority approvals;
12. Force Majeure; or
13. any circumstance beyond the Seller's reasonable control.
    

5.4 The Customer acknowledges that Delivery dates may reasonably change where the Seller is delayed by any matter referred to in Clause 5.3 and such delay shall not constitute a breach of contract by the Seller.

5.5 The Seller may deliver the Goods in instalments or partial deliveries. Each instalment shall be deemed to be a separate contract and failure of any instalment shall not entitle the Customer to reject any other instalment.

5.6 The Customer shall ensure that the Site is ready to receive the Goods at the agreed Delivery time, including:

1. unrestricted access;
2. suitable unloading facilities;
3. adequate storage;
4. suitable ground conditions;
5. sufficient labour where required;
6. all prerequisite building works being completed; and
7. compliance with all Site safety requirements.

5.7 Where Delivery cannot occur due to any act or omission of the Customer, the Seller may:

1. store the Goods at the Customer's risk and expense;
2. redeliver the Goods at a later date;
3. charge all storage, handling, transport, demurrage, insurance, crane, plant, labour and administration costs incurred;
4. invoice the Customer for the Goods as though Delivery had occurred; and
5. suspend further performance until all outstanding amounts have been paid.

5.8 Where the Seller is required to return to the Site due to failed Delivery, restricted access, incomplete Site works or any Customer-caused delay, all additional attendances, labour, travel, plant, equipment and associated costs shall constitute a Variation.

5.9 Unless otherwise expressly included within the Seller's quotation, unloading of the Goods shall be the Customer's responsibility. Where the Seller provides unloading assistance, such assistance shall be at the Customer's risk and expense.

5.10 The Customer shall inspect the Goods upon Delivery and shall not unreasonably refuse Delivery due to minor defects, incomplete commissioning, adjustment items or matters capable of rectification during the ordinary course of completion.

5.11 The Customer shall not delay or withhold payment due to:

1. minor defects;
2. incomplete commissioning;
3. outstanding documentation;
4. defects caused by others;
5. works outside the Seller's scope; or
6. matters that do not materially prevent the intended use of the Goods.

5.12 The Seller may make partial Delivery of Goods before completion of manufacture, installation or commissioning where reasonably necessary to facilitate the progress of the Works and shall be entitled to issue progress claims accordingly.

5.13 If the Customer requests that Delivery be delayed after manufacture has commenced, the Seller may invoice for the completed Goods, suspend further work, and recover all reasonable costs associated with storage, handling, insurance, preservation, transport, deterioration risk and subsequent remobilisation.

5.14 Unless otherwise agreed in writing, the Seller is not responsible for the security, protection or storage of the Goods following Delivery.

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5.15 Acceptance of Delivery by any employee, contractor, agent, superintendent, builder, site representative or other person appearing to have authority on behalf of the Customer shall constitute acceptance of Delivery by the Customer.

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6. Risk

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6.1 Risk in the Goods shall immediately pass to the Customer upon Delivery in accordance with Clause 5, notwithstanding that ownership of the Goods may remain with the Seller pursuant to Clause 9 (Personal Property Securities Act 2009).

6.2 From the time risk passes, the Customer assumes all responsibility for the Goods, including responsibility for their security, protection, handling, storage, operation, maintenance and preservation, and shall bear all risk of loss, theft, damage or deterioration from any cause whatsoever.

6.3 Where the Goods are delivered to an unattended Site, construction site, storage facility or other location nominated by the Customer, Delivery shall be deemed complete upon unloading or placement of the Goods at that location, and all risk shall immediately pass to the Customer.

6.4 Where the Customer arranges or nominates a carrier, freight provider, transport company or other third party to collect or transport the Goods, the Goods shall be entirely at the Customer's risk from the time the Goods are loaded onto that carrier's vehicle or otherwise placed into that carrier's possession.

6.5 The Customer acknowledges that the Seller has relied upon information, dimensions, drawings, engineering, specifications and instructions provided by the Customer or others. The Seller shall not be responsible for any loss, damage or cost arising from inaccuracies, omissions or errors contained within such information.

6.6 The Customer warrants that all buildings, structures, supports, openings, slabs, lintels, foundations, fixing points and surrounding construction intended to receive the Goods are suitable, structurally adequate and compliant with all applicable laws, regulations, Australian Standards and engineering requirements unless expressly designed by the Seller under a separate written agreement.

6.7 The Seller accepts no responsibility for damage, failure, malfunction or additional costs arising from:

1. defective building works;
2. structural movement;
3. settlement;
4. cracking;
5. water ingress;
6. corrosion caused by the surrounding environment;
7. defective electrical supply;
8. defective hydraulic systems;
9. defective fire services;
10. defective access control systems;
11. defective building management systems;
12. equipment supplied by others;
13. works performed by other contractors; or
14. any matter beyond the Seller's reasonable control.

6.8 Following Delivery, the Customer shall ensure that the Goods are adequately protected against theft, vandalism, weather, impact damage, contamination, misuse and interference by other contractors.

6.9 The Seller shall not be liable for any damage caused to the Goods by:

1. builders;
2. subcontractors;
3. other trades;
4. the Customer;
5. the Principal;
6. the Superintendent;
7. members of the public; or
8. any third party,

following Delivery.

6.10 The Customer shall not permit any person other than the Seller, or a person authorised in writing by the Seller, to carry out repairs, servicing, programming, commissioning, adjustment, modification or alteration of the Goods during the warranty period unless otherwise approved in writing by the Seller.

6.11 Any unauthorised repair, modification, adjustment, programming, commissioning or interference with the Goods may, at the Seller's discretion, void the Seller's warranty to the extent permitted by law.

6.12 Where the Seller returns to Site to rectify damage caused by persons other than the Seller, or to rectify issues arising from Customer-caused delays, incomplete Site works or interference by others, all associated labour, travel, plant, equipment, materials and administration costs shall constitute a Variation payable by the Customer.

6.13 The Customer indemnifies and shall keep indemnified the Seller from and against all claims, losses, liabilities, damages, costs, expenses and demands arising from:

1. the Customer's breach of these Terms and Conditions;
2. damage occurring after risk has passed to the Customer;
3. defective Site conditions;
4. structural inadequacy;
5. inaccurate information supplied by the Customer;
6. acts or omissions of the Customer or third parties;
7. unauthorised interference with the Goods; or
8. the Customer's failure to adequately secure, maintain or protect the Goods.
   

6.14 Nothing in this clause shall prejudice or limit the Seller's rights under Clause 9 (Personal Property Securities Act 2009), including the Seller's ownership of the Goods until payment has been made in full.

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7. Access

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7.1 The Customer shall ensure that the Seller is provided with full, safe, continuous and unrestricted access to the Site sufficient to enable the Seller to carry out the Works efficiently and without interruption.

7.2 The Customer warrants that, prior to the Seller attending the Site:

1. all prerequisite works required for the Seller to commence have been completed;
2. all structural works affecting the Seller's scope have been completed and are suitable to receive the Goods;
3. all dimensions, openings and supporting structures are complete and compliant with the Seller's approved shop drawings;
4. all temporary works required by others have been completed;
5. permanent or temporary power required under the Seller's scope is available;
6. lighting, access ways and work areas are suitable and safe;
7. the Site complies with all applicable workplace health and safety legislation;
8. all permits, inductions, licences and approvals required for the Seller to commence work have been obtained;
9. all work areas are free from obstruction, debris and unnecessary materials; and
10. the Site is ready for the Seller to proceed in accordance with the agreed programme.

7.3 Unless expressly included within the Seller's quotation, the Customer shall provide, at its own cost:

1. cranes;
2. forklifts;
3. telehandlers;
4. elevated work platforms;
5. scaffolding;
6. traffic management;
7. lifting equipment;
8. rigging;
9. lifting personnel;
10. unloading facilities;
11. storage facilities;
12. security; and
13. any other access equipment reasonably required to undertake the Works.

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7.4 The Seller shall not be responsible for any delay arising from:

1. restricted Site access;
2. Site closures;
3. industrial action by others;
4. security restrictions;
5. permit delays;
6. incomplete building works;
7. defective works performed by others;
8. unavailable cranes or lifting equipment;
9. weather preventing safe access;
10. directions given by the Principal, Superintendent or Site management; or
11. any other circumstance beyond the Seller's reasonable control.

7.5 Where the Seller is unable to proceed due to any matter referred to in Clause 7.4, the Seller shall be entitled to:

1. suspend the Works;
2. extend the time for completion;
3. reschedule labour and resources;
4. recover all costs associated with delay, disruption, standing time, remobilisation, additional attendances, labour, travel, plant, equipment, subcontractors and administration; and
5. claim such costs as a Variation.

7.6 Any attendance by the Seller where the Site is not ready shall constitute a failed attendance. The Customer shall be liable for all resulting service call charges, labour, travel, plant, equipment, accommodation, administration and remobilisation costs.

7.7 Where the Seller is required to leave the Site and return at a later date due to circumstances beyond its reasonable control, each return attendance shall constitute a separate Variation.

7.8 The Customer shall immediately notify the Seller of any matter that may affect the Seller's access to the Site, including changes to construction programmes, Site rules, inductions, access hours, security requirements, possession dates or Principal requirements.

7.9 If the Seller is required to perform the Works outside normal working hours due to delays caused by the Customer, the Principal, the Superintendent or any third party, all additional labour costs, penalties, allowances, supervision and associated costs shall be payable by the Customer as a Variation.

7.10 The Seller shall not be liable for any delay, disruption, liquidated damages, prolongation costs or other losses arising from delayed completion of the Works where such delay results wholly or partly from any act or omission of the Customer, the Principal, the Superintendent, other contractors or any circumstance beyond the Seller's reasonable control.

7.11 The Customer indemnifies and shall keep indemnified the Seller against all claims, costs, losses and liabilities arising from the Customer's failure to provide safe, suitable and uninterrupted access to the Site.

7.12 Nothing in this clause shall oblige the Seller to perform work where, in the Seller's reasonable opinion:

1. the Site is unsafe;
2. access cannot be safely obtained;
3. the Seller's employees or contractors would be exposed to an unacceptable safety risk;
4. the Site does not comply with applicable workplace health and safety legislation; or
5. the Seller would otherwise be required to breach any law, regulation, Australian Standard or safety requirement.

7.13 The Seller reserves the right to cease work immediately where any circumstance described in Clause 7.12 exists, without liability for delay, and any resulting costs, delays, extensions of time or remobilisation shall constitute a Variation payable by the Customer.

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8. Compliance with Laws

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8.1 The Customer shall obtain, maintain and comply with all approvals, permits, licences, consents, authorities, notifications and statutory requirements necessary for the lawful performance of the Works, except to the extent expressly stated in writing to be the Seller's responsibility.

8.2 Unless expressly included within the Seller's quotation, the Seller shall not be responsible for:

1. building permits;
2. planning permits;
3. occupancy permits;
4. engineering certification of the building or supporting structure;
5. fire engineering design or certification;
6. building surveying;
7. authority approvals;
8. electrical certification of works performed by others;
9. hydraulic certification;
10. mechanical certification;
11. access control certification;
12. Building Management System (BMS) certification;
13. compliance certification for works outside the Seller's scope; or
14. any approval, certification or statutory obligation relating to work performed by others.

8.3 The Customer warrants that all Site conditions, buildings, structures and supporting works necessary to receive the Goods comply with all applicable legislation, regulations, Australian Standards, National Construction Code (NCC), Building Code of Australia (BCA), engineering requirements and all authority requirements.

8.4 The Seller shall perform the Works in accordance with all applicable legislation and Australian Standards to the extent that such legislation and standards apply to the Goods and Services expressly included within the Seller's scope of works.

8.5 The Seller shall not be responsible for ensuring compliance of any work, equipment, structure or system supplied or installed by others, even where such work interfaces with the Seller's Goods.

8.6 Where the Customer requests additional work or modifications to achieve compliance with any authority, code, regulation, Australian Standard, engineering requirement or direction issued after the date of the Seller's quotation, such work shall constitute a Variation and shall be payable by the Customer.

8.7 If, after acceptance of the Seller's quotation, there is any change to:

1. legislation;
2. regulations;
3. Australian Standards;
4. the National Construction Code;
5. authority requirements;
6. engineering requirements;
7. fire engineering requirements;
8. Principal requirements; or
9. any statutory obligation,
   

which affects the Seller's obligations, programme, design, manufacture, installation or cost, the Seller shall be entitled to an equitable adjustment to the Contract Price and an extension of time.

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8.8 The Customer acknowledges that compliance of the Seller's Goods does not constitute compliance of the overall building, structure, fire system, electrical installation, mechanical installation or any integrated system unless expressly stated by the Seller in writing.

8.9 The Customer shall immediately notify the Seller of any authority direction, defect notice, rectification notice, engineering instruction or statutory requirement affecting the Seller's Goods.

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8.10 The Seller shall not be liable for any delay, loss, cost or damage arising from:

1. delays in obtaining statutory approvals;
2. authority inspections;
3. authority directions;
4. changes to statutory requirements;
5. defective work performed by others;
6. non-compliant Site conditions;
7. inaccurate documentation supplied by others; or
8. any matter beyond the Seller's reasonable control.

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8.11 Where the Seller is required to suspend, redesign, modify or recommence the Works as a consequence of any matter referred to in this clause, all resulting labour, engineering, drafting, procurement, manufacture, transport, plant, equipment, supervision, administration and remobilisation costs shall constitute a Variation payable by the Customer.

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8.12 Nothing in this Contract shall require the Seller to carry out any work that would result in a breach of any applicable legislation, regulation, Australian Standard, Work Health and Safety legislation or any lawful direction of a statutory authority.

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8.13 The Customer indemnifies and shall keep indemnified the Seller against all claims, costs, losses, damages, penalties, expenses and liabilities arising from:

1. the Customer's failure to comply with applicable laws;
2. non-compliant Site conditions;
3. defective work performed by others;
4. failure to obtain required approvals or permits;
5. inaccurate information supplied by the Customer; or
6. any statutory non-compliance outside the Seller's expressly agreed scope of works.

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9. Personal Property Securities Act 2009 (PPSA)

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9.1 In this clause:

1. "PPSA" means the Personal Property Securities Act 2009 (Cth);
2. "Security Interest", "Purchase Money Security Interest" ("PMSI"), "Financing Statement", "Financing Change Statement", "Proceeds", "Collateral", "Verification Statement", "Grantor" and "Secured Party" have the meanings given to those terms in the PPSA.

9.2 Until the Seller has received payment in full (in cleared funds) for all Goods supplied under the Contract and all other monies owing by the Customer to the Seller on any account whatsoever:

1. legal and beneficial ownership of the Goods shall remain with the Seller;
2. the Customer holds the Goods as bailee for the Seller;
3. the Customer shall store the Goods separately where reasonably practicable and in a manner that clearly identifies the Seller's ownership;
4. the Customer shall maintain the Goods in good condition and shall not permit the Goods to become fixtures where such attachment would prejudice the Seller's Security Interest without the Seller's prior written consent;
5. the Customer shall not sell, lease, pledge, mortgage, charge or otherwise encumber the Goods except in the ordinary course of the Customer's business and only on terms that preserve the Seller's rights under this clause.

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9.3 The Customer grants the Seller a continuing Security Interest in:

1. all Goods supplied by the Seller;
2. all proceeds derived directly or indirectly from the Goods;
3. all present and after-acquired property of the Customer to the extent necessary to secure payment of all monies owing to the Seller; and
4. any replacement Goods, substituted Goods or insurance proceeds relating to the Goods.
   

9.4 The Security Interest created under this Contract secures payment of all amounts owing by the Customer to the Seller from time to time, whether arising under this Contract or otherwise.

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9.5 The Seller may register one or more Financing Statements or Financing Change Statements under the PPSA in any manner the Seller considers appropriate to perfect or protect its Security Interest.

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9.6 The Customer shall immediately upon request:

1. execute any document;
2. provide any information;
3. obtain any consent;
4. do all acts and things,

reasonably required by the Seller to register, perfect, maintain, amend, renew, enforce or otherwise protect the Seller's Security Interest.

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9.7 The Customer shall not:

1. register or permit to be registered a Financing Change Statement relating to the Seller's Security Interest;
2. do or omit to do anything that may prejudice the Seller's Security Interest; or
3. create or permit another Security Interest over the Goods that ranks ahead of or equally with the Seller's Security Interest without the Seller's prior written consent.

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9.8 The Customer irrevocably appoints the Seller and each of its Directors as the Customer's lawful attorney, with full power of substitution, to execute any document or do any act necessary to give effect to this clause where the Customer fails to do so.

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9.9 If the Customer defaults in payment or otherwise breaches this Contract, the Seller may, without prejudice to any other rights or remedies:

1. enter any land or premises where the Goods are located;
2. recover possession of the Goods;
3. remove, disconnect or dismantle the Goods where reasonably necessary;
4. sell, dispose of or otherwise deal with the Goods; and
5. recover from the Customer all costs incurred in exercising its rights under this clause, including legal costs on a full indemnity basis.

9.10 The Customer shall ensure the Seller has safe and unrestricted access to any premises where the Goods are located for the purposes of exercising the Seller's rights under this clause.

9.11 To the maximum extent permitted by the PPSA, the Customer waives its right to receive:

1. any Verification Statement under section 157 of the PPSA;
2. any notice required under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135, 142 or 143 of the PPSA; and
3. any other notice or statement that may lawfully be waived under the PPSA.

9.12 The Customer agrees that sections 96, 125, 129, 142 and 143 of the PPSA, and any other provision that may lawfully be contracted out of, shall not apply to the extent permitted by law.

9.13 The Seller may allocate any payment received from the Customer in any manner the Seller determines, including in a manner that preserves any Purchase Money Security Interest.

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9.14 The Customer shall reimburse the Seller upon demand for all costs and expenses incurred in connection with:

1. registering, maintaining, amending or enforcing any Security Interest;
2. recovering possession of the Goods;
3. exercising any rights under the PPSA; and
4. enforcing this Contract,

including legal costs on a full indemnity basis.

9.15 Nothing contained in this clause limits or affects any other right, remedy or entitlement available to the Seller under this Contract, at common law, in equity or under any statute.

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10. Security and Charge

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10.1 In consideration of the Seller agreeing to supply the Goods and/or Services, the Customer irrevocably charges in favour of the Seller all of the Customer's present and future right, title and interest (whether legal or equitable, joint or several) in and to any land, real property, personal property and any other assets capable of being the subject of a security interest or equitable charge, whether owned now or acquired in the future, as continuing security for the due and punctual performance of all obligations owed by the Customer to the Seller, including payment of all monies owing under this Contract or otherwise.

10.2 The security created under this clause shall be a continuing security and shall remain in force until the Seller has received payment in full, in cleared funds, of all amounts owing by the Customer to the Seller, together with all interest, costs, fees and other amounts recoverable under these Terms and Conditions.

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10.3 The Customer acknowledges that the Seller may lodge a caveat, mortgage, charge, security interest or any other instrument necessary to protect or enforce the Seller's rights under this clause where the Seller reasonably believes the Customer has failed, or may fail, to comply with its obligations under these Terms and Conditions.

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10.4 The Customer shall immediately upon request execute any mortgage, charge, consent, authority, acknowledgment or other document reasonably required by the Seller to register, perfect or protect the Seller's rights under this clause.

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10.5 If the Customer fails to execute any document requested under Clause 10.4 within five (5) Business Days of receiving the request, the Customer irrevocably appoints the Seller and each Director or authorised representative of the Seller, jointly and severally, as the Customer's true and lawful attorney with full authority to execute, complete, sign, lodge, register and deliver any document or instrument necessary to give effect to this clause.

10.6 The power of attorney granted under this clause:

1. is irrevocable;
2. is given to secure the performance of the Customer's obligations;
3. may be exercised notwithstanding any conflict of interest; and
4. survives termination of this Contract until all obligations have been satisfied in full.

10.7 The Customer warrants that:

1. it is the legal and beneficial owner of the property charged under this clause or is otherwise entitled to grant the security created by this clause;
2. no consent from any third party is required to create the security granted under this clause, or where required, such consent has been obtained;
3. execution of this Contract does not breach any mortgage, security agreement, trust deed, financing arrangement or other legal obligation.

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10.8 The Customer shall not sell, transfer, mortgage, charge, assign or otherwise deal with any property subject to the security created by this clause where such dealing would materially prejudice the Seller's rights, without first obtaining the Seller's written consent.

10.9 The Customer shall immediately notify the Seller of:

1. any change in ownership of property charged under this clause;
2. any proposed sale or transfer of that property;
3. any default under any mortgage or other security affecting that property;
4. any insolvency event affecting the Customer; or
5. any circumstance likely to materially affect the value of the Seller's security.

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10.10 The Customer indemnifies the Seller against all costs, expenses and liabilities incurred in connection with:

1. preparing documents under this clause;
2. registering or protecting the Seller's security;
3. lodging or withdrawing caveats;
4. enforcing the Seller's rights;
5. exercising the power of attorney; and
6. recovering monies owing,

including all legal costs on a full indemnity basis, registration fees, valuation costs, court costs, enforcement costs and disbursements.

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10.11 The rights granted under this clause are cumulative and are in addition to, and do not limit, any rights available to the Seller under the Personal Property Securities Act 2009 (Cth), at common law, in equity or under any other statute.

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10.12 Nothing in this clause obliges the Seller to register or enforce any security and the Seller may exercise any right under this clause at such time and in such manner as it considers appropriate.

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10.13 The Customer acknowledges that the security granted under this clause is reasonable having regard to the value of the Goods and Services supplied, the credit extended by the Seller and the commercial risks assumed by the Seller in performing the Works.

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‍

11. Defects, Warranties, Returns and Competition and Consumer Act 2010 (CCA)

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11.1 The Customer shall inspect the Goods immediately upon Delivery, installation or Commissioning (whichever first occurs) and shall, within seven (7) days of Delivery, notify the Seller in writing of any alleged defect, shortage, incorrect supply, damage or non-conformity that is reasonably capable of being identified upon inspection.

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11.2 Any defect not reasonably capable of being identified upon inspection shall be notified to the Seller immediately, and in any event within seven (7) days of the defect becoming apparent.

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11.3 Failure by the Customer to comply with Clauses 11.1 or 11.2 shall, to the fullest extent permitted by law, constitute acceptance of the Goods and Services and the Customer shall be deemed to have accepted that the Goods comply with the Contract.

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11.4 The Seller's liability in respect of any defect, warranty claim or return is limited to the rights expressly provided under these Terms and Conditions, the Seller's Terms of Warranty and any rights that cannot lawfully be excluded under the Competition and Consumer Act 2010 (Cth).

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11.5 The Seller's Terms of Warranty, Operation and Maintenance Manual, Service Agreements, Commissioning Documentation, Maintenance Schedules, Technical Bulletins, Product Literature and all other Seller Documents form part of these Terms and Conditions and are incorporated into the Contract as though fully set out herein.

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11.6 The Customer acknowledges that it has had the opportunity to obtain and review all Seller Documents before entering into the Contract and agrees that failure to request, obtain or read those documents shall not limit, vary or exclude their operation or the Customer's obligations under them.

11.7 Unless otherwise expressly stated in writing, all warranty periods commence upon the earliest of:

1. Commissioning;
2. Practical Completion of the Seller's Works;
3. beneficial use of the Goods;
4. occupation of the relevant area;
5. handover of the Works; or
6. thirty (30) days after Delivery,

whichever first occurs.

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11.8 The Seller's warranty is strictly conditional upon:

1. full payment of all monies owing to the Seller;
2. the Goods being correctly operated in accordance with the Seller's instructions;
3. all servicing and maintenance being performed at the intervals specified by the Seller;
4. servicing being performed by the Seller or by a suitably qualified person approved by the Seller where required under the applicable warranty;
5. complete maintenance records being retained and produced upon request;
6. no unauthorised repair, alteration, programming, adjustment, modification or interference occurring;
7. compliance with all Seller Documents;
8. the surrounding building works remaining structurally adequate and suitable for the Goods; and
9. the Goods not being subjected to abnormal operating conditions.

11.9 Without limiting Clause 11.8, the Seller's warranty does not apply to defects, failures or damage arising directly or indirectly from:

1. fair wear and tear;
2. accidental damage;
3. impact damage;
4. misuse;
5. abuse;
6. neglect;
7. vandalism;
8. theft;
9. attempted forced entry;
10. pressure cleaning;
11. flooding;
12. corrosion arising from environmental conditions;
13. chemical attack;
14. fire;
15. lightning;
16. power surge;
17. defective electrical supply;
18. defective fire services;
19. defective hydraulic systems;
20. defective building management systems;
21. defective access control systems;
22. defective building works;
23. structural movement;
24. settlement;
25. acts or omissions of third parties;
26. any matter outside the Seller's reasonable control.
    

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11.10 The Seller reserves the right to inspect the Goods before determining whether any alleged defect is covered by warranty.

‍

11.11 The Customer shall provide the Seller with reasonable access to inspect, test, diagnose, repair or replace the Goods.

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11.12 Where access is not provided or is delayed, the Seller shall not be responsible for any resulting deterioration, damage or delay and any additional attendance shall constitute a Variation.

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11.13 If the Seller determines that the alleged defect is not covered by warranty, the Customer shall immediately pay all costs incurred by the Seller including:

1. service call charges;
2. labour;
3. travel;
4. accommodation;
5. plant;
6. equipment;
7. freight;
8. replacement parts; and
9. administration costs.

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11.14 Subject to the Competition and Consumer Act 2010 (Cth), Goods may only be returned where:

1. the Seller has provided prior written approval;
2. the Goods are defective or incorrectly supplied by the Seller, or the Seller otherwise agrees in writing;
3. the Goods are returned within the period nominated by the Seller;
4. the Goods remain substantially in their original condition and have not been installed, altered or damaged; and
5. all applicable freight, handling, inspection and restocking charges are paid by the Customer unless otherwise agreed in writing.

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11.15 The Seller is under no obligation to accept the return of:

1. Goods manufactured to the Customer's specifications;
2. custom fabricated Goods;
3. engineered Goods;
4. modified Goods;
5. special order Goods;
6. non-stock Goods;
7. Goods that have been installed;
8. Goods that have been commissioned;
9. Goods altered or damaged after Delivery; or
10. Goods returned without the Seller's prior written approval,

except where required by the Competition and Consumer Act 2010 (Cth).

11.16 Acceptance of any Goods for inspection shall not constitute acceptance of any warranty claim, return, liability or admission by the Seller.

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11.17 Subject always to the Competition and Consumer Act 2010 (Cth), the Seller's sole liability in respect of any valid warranty claim shall, at the Seller's sole discretion, be limited to:

1. repairing the Goods;
2. replacing the Goods;
3. supplying equivalent Goods;
4. paying the reasonable cost of repairing the Goods;
5. refunding the purchase price attributable to the defective Goods; or
6. re-performing the relevant Services.
   

11.18 To the fullest extent permitted by law, the Seller shall not be liable for any indirect, consequential, incidental or economic loss whatsoever including, but not limited to:

1. loss of profit;
2. loss of production;
3. loss of revenue;
4. loss of contract;
5. loss of opportunity;
6. liquidated damages;
7. financing costs;
8. delay costs;
9. increased project costs;
10. business interruption; or
11. any claim by a third party,
    

arising from any defect in the Goods or Services.

11.19 Nothing in these Terms and Conditions excludes, restricts or modifies any guarantee, condition, warranty, right or remedy that cannot lawfully be excluded or limited under the Competition and Consumer Act 2010 (Cth) or any other applicable legislation.

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11.20 Where any statutory guarantee applies, the Seller's liability shall be limited to the maximum extent permitted by the Competition and Consumer Act 2010 (Cth).

11.21 The remedies provided under this clause are cumulative and are in addition to any other rights available to the Seller under these Terms and Conditions, at law or in equity.

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‍

12. Default and Consequences of Default

‍

12.1 The Customer shall be in default under these Terms and Conditions if the Customer:

1. fails to pay any money owing to the Seller by the due date;
2. breaches any obligation under these Terms and Conditions;
3. repudiates or attempts to repudiate the Contract;
4. suspends, delays or prevents the Seller from carrying out the Works;
5. provides false, misleading or incomplete information to the Seller;
6. becomes insolvent or is presumed to be insolvent;
7. enters into administration, liquidation, receivership, voluntary administration or bankruptcy;
8. enters into any arrangement or compromise with creditors;
9. has a judgment entered against it which remains unsatisfied;
10. ceases or threatens to cease carrying on business;
11. disposes of a substantial part of its assets without the Seller's prior written consent where such disposal may prejudice the Seller's ability to recover monies owing; or
12. commits any act or omission which, in the Seller's reasonable opinion, materially prejudices the Seller's rights under the Contract.

12.2 Upon the occurrence of any default, all monies owing by the Customer to the Seller, whether or not otherwise due for payment, shall immediately become due and payable without demand.

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12.3 Without limiting any other rights available to the Seller, upon default the Seller may immediately and without prior notice:

1. suspend or cease the supply of Goods or Services;
2. suspend manufacture, procurement or installation;
3. refuse to make further Deliveries;
4. withhold Commissioning;
5. withhold Practical Completion documentation;
6. withhold Operation and Maintenance Manuals;
7. withhold warranty documentation;
8. withhold certification;
9. suspend attendance at Site;
10. recover possession of the Goods;
11. terminate the Contract; or
12. exercise any right available under the PPSA, these Terms and Conditions or at law.
    

12.4 The Seller shall not be liable for any loss, delay, disruption, liquidated damages, prolongation costs, consequential loss or third-party claim arising from exercising its rights under Clause 12.3.

12.5 The Customer shall pay interest on all overdue amounts at the rate of two and one-half percent (2.5%) per calendar month, calculated daily from the due date until payment is received in full, without prejudice to any other rights of the Seller.

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12.6 The Customer shall indemnify the Seller against all costs, expenses and losses incurred by the Seller in recovering any monies owing or enforcing its rights under these Terms and Conditions including, without limitation:

1. legal costs on a full indemnity basis;
2. debt collection agency fees;
3. mercantile agent fees;
4. court filing fees;
5. barrister's fees;
6. expert witness fees;
7. process server fees;
8. enforcement costs;
9. investigation costs;
10. tracing costs; and
11. internal administration costs reasonably incurred in recovering the debt.
    

12.7 The Seller may apply any payment received from the Customer against any outstanding debt in any order the Seller determines, regardless of any direction given by the Customer.

12.8 The Customer shall not be entitled to withhold payment, set-off, deduct or counterclaim against any amount owing to the Seller unless such right cannot lawfully be excluded.

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12.9 The Customer acknowledges that any dispute relating to defects, warranty claims, variations, delays, back charges, liquidated damages or any other alleged entitlement shall not relieve the Customer from its obligation to pay invoices when due.

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12.10 Acceptance by the Seller of any late payment shall not constitute a waiver of the Seller's rights arising from the Customer's default.

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12.11 The Seller may terminate the Contract immediately by written notice where the Customer remains in default for more than seven (7) days after written demand, or immediately where the default is incapable of remedy.

12.12 Termination of the Contract shall not affect:

1. any accrued rights of either party;
2. the Seller's entitlement to payment for Goods supplied or Services performed;
3. the Seller's right to recover damages;
4. the Seller's rights under the PPSA;
5. any indemnity granted under these Terms and Conditions; or
6. any provision intended to survive termination.

12.13 If the Seller terminates the Contract, the Customer shall immediately pay:

1. all Goods supplied;
2. all Services performed;
3. all Goods manufactured or procured whether delivered or not;
4. all work in progress;
5. all reasonable cancellation costs;
6. all demobilisation and remobilisation costs;
7. all storage costs;
8. all supplier cancellation charges;
9. all restocking charges;
10. all administrative costs reasonably incurred by the Seller; and
11. all damages suffered by the Seller arising from the Customer's default.

12.14 Nothing in this clause limits any other remedy available to the Seller under these Terms and Conditions, at common law, in equity or under any applicable legislation.

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12.15 The rights contained in this clause are cumulative and may be exercised separately or concurrently by the Seller.

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13. Cancellation

‍

13.1 The Seller may cancel or suspend the Contract, in whole or in part, at any time before completion of the Works by written notice to the Customer where:

1. the Customer is in default under Clause 12;
2. the Customer fails to make any payment when due;
3. the Customer commits a material breach of these Terms and Conditions;
4. the Seller reasonably believes the Customer is insolvent or likely to become insolvent;
5. the continuation of the Works would expose the Seller to an unacceptable commercial, financial, legal or safety risk;
6. performance of the Contract becomes impossible, unlawful or commercially impracticable due to circumstances beyond the Seller's reasonable control; or
7. the Seller otherwise becomes entitled to terminate these Terms and Conditions at law.

13.2 The Customer may only cancel the Contract with the Seller's prior written consent.

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13.3 Any request by the Customer to cancel the Contract shall not take effect until accepted in writing by the Seller.

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13.4 Where the Customer requests cancellation, the Seller shall be entitled to recover all losses, costs and expenses incurred or committed by the Seller up to the date of cancellation, including but not limited to:

1. all Goods supplied;
2. all Services performed;
3. all labour performed;
4. all engineering;
5. all drafting and shop drawings;
6. all programming;
7. all procurement activities;
8. all Goods manufactured or partially manufactured;
9. all Goods ordered from suppliers;
10. all custom fabricated Goods;
11. all special order Goods;
12. all imported Goods;
13. all freight and transport costs;
14. all storage costs;
15. all supplier cancellation charges;
16. all restocking fees imposed by suppliers;
17. all subcontractor costs;
18. all plant and equipment costs;
19. all administration and project management costs;
20. all demobilisation costs;
21. all remobilisation costs already incurred;
22. all overheads reasonably attributable to the Contract;
23. the Seller's loss of profit on the uncompleted portion of the Contract where permitted by law; and
24. any other loss reasonably incurred by the Seller arising from the cancellation.

13.5 Where manufacture of custom Goods has commenced, the Customer acknowledges that those Goods may have little or no resale value and agrees that cancellation shall not relieve the Customer from liability to pay for those Goods.

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13.6 Any deposit paid by the Customer may be retained by the Seller and applied against any amounts owing under Clause 13.4 without prejudice to any other rights available to the Seller.

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13.7 The Seller shall not be required to refund any deposit until all amounts recoverable under this clause have been determined and paid.

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13.8 If the Seller agrees to suspend rather than cancel the Contract at the Customer's request:

1. the Seller may immediately invoice all work completed to the date of suspension;
2. the Seller may invoice all Goods manufactured or procured;
3. the Customer shall pay all storage, insurance, preservation and handling costs;
4. any recommencement of the Works shall be subject to the Seller's availability; and
5. all remobilisation, recommencement, escalation and associated costs shall constitute a Variation.

13.9 Where the Contract is suspended or cancelled for more than thirty (30) days, the Seller may review and adjust the Contract Price to reflect increases in labour, material, freight, supplier and overhead costs before recommencing the Works.

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13.10 Cancellation or suspension shall not affect:

1. any accrued rights of either party;
2. any payment obligation already incurred;
3. the Seller's entitlement to recover damages;
4. the Seller's rights under Clause 9 (Personal Property Securities Act 2009);
5. any indemnity granted by the Customer; or
6. any provision intended to survive termination.

13.11 The Customer shall not be entitled to cancel the Contract, reject the Goods or refuse Delivery solely because:

1. the Customer no longer requires the Goods;
2. the Customer's project has been delayed;
3. the Customer has experienced funding difficulties;
4. another contractor has been engaged;
5. the Principal has varied the project;
6. the Customer has sold the property or business; or
7. the Customer's contractual arrangements with any third party have changed.
   

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13.12 The Seller's exercise of any right under this clause shall not constitute a waiver of any other right or remedy available under these Terms and Conditions, at common law, in equity or under any applicable legislation.

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13.13 The rights contained in this clause are cumulative and may be exercised separately or concurrently by the Seller.

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14. Privacy Act 1988

‍

14.1 The Customer authorises the Seller to collect, retain, use and disclose personal information about the Customer, its directors, shareholders, trustees, partners, guarantors, employees and authorised representatives for the purposes of:

1. assessing creditworthiness;
2. processing applications for credit;
3. supplying Goods and Services;
4. administering and enforcing this Contract;
5. recovering monies owing;
6. complying with legal and regulatory obligations;
7. maintaining the Seller's internal business records;
8. obtaining insurance;
9. conducting account reviews;
10. protecting and enforcing the Seller's legal rights; and
11. any other purpose reasonably connected with the Seller's business.

14.2 The Customer acknowledges that the Seller may collect personal information from:

1. the Customer;
2. credit reporting bodies;
3. credit providers;
4. referees;
5. publicly available registers;
6. government authorities;
7. insolvency databases;
8. trade references;
9. financial institutions; and
10. any other lawful source.

14.3 The Customer irrevocably authorises the Seller to exchange information with any person or entity for the purposes described in this clause, including:

1. credit providers;
2. credit reporting bodies;
3. debt collection agencies;
4. mercantile agents;
5. insurers;
6. legal advisers;
7. accountants;
8. financiers;
9. subcontractors;
10. suppliers;
11. professional advisers; and
12. any person engaged by the Seller to assist in administering or enforcing this Contract.

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14.4 Where the Customer is an individual, the Customer authorises the Seller to obtain, receive, exchange and use consumer credit information and commercial credit information in accordance with the Privacy Act 1988 (Cth) and the Privacy (Credit Reporting) Code for the purposes of:

1. assessing any application for commercial credit;
2. reviewing existing credit facilities;
3. collecting overdue accounts;
4. enforcing the Seller's rights; and
5. determining whether to continue supplying Goods or Services.

14.5 The Customer acknowledges that the Seller may provide personal information to a credit reporting body where permitted by law, including information relating to:

1. applications for commercial credit;
2. the Customer's payment history;
3. overdue amounts;
4. defaults;
5. serious credit infringements;
6. court judgments;
7. insolvency events; and
8. any other information permitted to be disclosed under applicable legislation.
   

14.6 The Customer consents to the Seller obtaining and exchanging commercial credit information throughout the duration of the commercial relationship between the parties for the purpose of monitoring the Customer's ongoing creditworthiness.

14.7 The Customer acknowledges that the Seller may store personal information electronically, including by using cloud-based storage providers and secure third-party service providers located within or outside Australia, provided the Seller takes reasonable steps to ensure compliance with applicable privacy laws.

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14.8 The Customer shall promptly notify the Seller of any change to its personal information, contact details, directors, ownership, trading name, registered office, principal place of business or any other information relevant to the administration of this Contract.

14.9 The Customer may request access to, or correction of, personal information held by the Seller by making a written request. The Seller may require reasonable proof of identity before providing access.

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14.10 The Seller may refuse access to personal information where permitted by law, including where disclosure would:

1. unreasonably impact the privacy of another person;
2. prejudice legal proceedings;
3. reveal commercially sensitive information;
4. be unlawful; or
5. otherwise be exempt under the Privacy Act 1988 (Cth).

14.11 The Seller will retain personal information for as long as reasonably necessary to fulfil the purposes described in this clause or as otherwise required by law, after which it may securely destroy or de-identify that information.

14.12 The Customer may request that the Seller cease using personal information for direct marketing purposes at any time, and the Seller will comply with that request as soon as reasonably practicable.

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14.13 If the Customer believes that the Seller has breached the Privacy Act 1988 (Cth), the Customer may submit a written complaint to the Seller. The Seller shall investigate the complaint in good faith and respond within a reasonable period. If the Customer is dissatisfied with the outcome, the Customer may refer the complaint to the Office of the Australian Information Commissioner.

14.14 Nothing in this clause limits any right of the Seller to collect, use, retain or disclose information where authorised or required by law.

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14.15 The Customer warrants that where it provides the Seller with personal information relating to any other individual, it has obtained all necessary consents required by law to enable the Seller to collect, use, store and disclose that information in accordance with this clause.

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15. Building and Construction Industry Security of Payment Act 2002

‍

15.1 Where the Building and Construction Industry Security of Payment Act 2002 (Vic), or any equivalent or replacement security of payment legislation applicable within the relevant jurisdiction ("Security of Payment Legislation"), applies to the Goods or Services supplied by the Seller, the parties acknowledge and agree that the Seller shall be entitled to exercise all rights, remedies and entitlements available under that legislation in addition to its rights under these Terms and Conditions.

15.2 Nothing contained in these Terms and Conditions shall be construed as limiting, excluding, restricting or contracting out of any provision of the applicable Security of Payment Legislation except to the extent expressly permitted by that legislation.

15.3 The Customer acknowledges that every invoice, payment claim, progress claim, milestone claim, variation claim, final claim or other written demand for payment issued by the Seller may constitute a payment claim for the purposes of the applicable Security of Payment Legislation where the legislative requirements are satisfied.

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15.4 The Customer shall respond to any payment claim served by the Seller strictly within the time prescribed by the applicable Security of Payment Legislation. Failure to do so may entitle the Seller to the remedies available under that legislation, including recovery of the claimed amount as a statutory debt.

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15.5 The Seller shall be entitled to submit payment claims for:

1. Goods supplied;
2. Goods manufactured whether delivered or not where payment is otherwise due under the Contract;
3. Services performed;
4. Variations;
5. delay costs;
6. suspension costs;
7. remobilisation costs;
8. storage costs;
9. engineering;
10. drafting;
11. shop drawings;
12. procurement;
13. commissioning;
14. project management; and
15. any other amount recoverable under the Contract or applicable legislation.
    

15.6 The Customer acknowledges that payment of any progress claim shall not constitute:

1. acceptance of defective work;
2. acceptance of a Variation;
3. waiver of any contractual right;
4. Final Completion; or
5. acceptance that the Seller has no further obligations under the Contract.

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15.7 The Seller may suspend the carrying out of any Works where entitled to do so under the applicable Security of Payment Legislation or these Terms and Conditions.

‍

15.8 Where the Seller lawfully suspends the Works:

1. the Customer shall remain liable for all costs incurred prior to suspension;
2. the Customer shall pay all reasonable costs associated with the suspension;
3. the Customer shall pay all recommencement and remobilisation costs;
4. the Seller shall be entitled to an extension of time for completion equal to the period of suspension together with a reasonable period for recommencement; and
5. the Seller shall not be liable for any delay, disruption, liquidated damages, prolongation costs or consequential loss arising from the lawful suspension.

15.9 Nothing in these Terms and Conditions shall prejudice the Seller's right to:

1. commence adjudication;
2. commence court proceedings;
3. recover any debt;
4. exercise any contractual right;
5. exercise any right under the Personal Property Securities Act 2009 (Cth);
6. recover possession of Goods; or
7. pursue any other remedy available at law or in equity,

whether concurrently or separately.

15.10 The rights and remedies contained in this clause are cumulative and shall not limit any other right or remedy available to the Seller under these Terms and Conditions, at common law, in equity or pursuant to any applicable legislation.

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15.11 Where any provision of this Contract is inconsistent with the mandatory provisions of the applicable Security of Payment Legislation, the legislation shall prevail only to the extent of the inconsistency, and the remainder of these Terms and Conditions shall continue in full force and effect.

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16. General

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16.1 No failure, delay or omission by the Seller in exercising any right, power or remedy under these Terms and Conditions shall operate as a waiver of that right, power or remedy, nor shall any single or partial exercise prevent any further exercise of that or any other right, power or remedy.

16.2 If any provision of these Terms and Conditions is determined by a court or tribunal of competent jurisdiction to be invalid, illegal, void or unenforceable, that provision shall be severed only to the extent necessary and the remaining provisions shall remain in full force and effect.

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16.3 These Terms and Conditions and every Contract between the Seller and the Customer shall be governed by the laws of the State of Victoria and the laws of the Commonwealth of Australia applicable therein.

16.4 The parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria and the Commonwealth of Australia in respect of any dispute arising out of or in connection with these Terms and Conditions or any Contract between the parties.

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16.5 Subject always to Clause 11 and to the extent permitted by law, the Seller shall not be liable for any indirect, incidental, special, exemplary, punitive or consequential loss or damage whatsoever, including but not limited to:

1. loss of profit;
2. loss of revenue;
3. loss of production;
4. loss of opportunity;
5. loss of business;
6. business interruption;
7. delay costs;
8. financing costs;
9. liquidated damages;
10. loss of goodwill;
11. increased project costs;
12. claims by third parties; or
13. any economic loss,
    

whether arising in contract, tort (including negligence), equity, statute or otherwise.

16.6 To the fullest extent permitted by law, the Seller's aggregate liability arising from or in connection with any Contract shall not exceed the total Price actually paid by the Customer under the relevant Contract, except where liability cannot lawfully be limited or excluded.

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16.7 The Customer shall not be entitled to set-off, deduct, retain, withhold or reduce any payment owing to the Seller by reason of any claim, dispute, counterclaim, cross-claim, back charge, liquidated damages, alleged defect or other matter whatsoever unless such right cannot lawfully be excluded.

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16.8 The Seller may assign, novate, subcontract, delegate or otherwise deal with all or any part of its rights and obligations under these Terms and Conditions without the Customer's consent, provided that such assignment, novation or subcontracting does not reduce any statutory rights of the Customer.

16.9 The Customer shall not assign, novate or otherwise transfer any Contract or any right or obligation arising under it without the Seller's prior written consent.

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16.10 The Seller may engage subcontractors, consultants, suppliers, manufacturers or other specialist contractors to perform any part of the Works, and the use of such parties shall not relieve the Customer of any obligation under these Terms and Conditions.

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16.11 The Customer acknowledges that quotations, engineering, shop drawings, calculations, specifications, software, programming, designs, methodologies, intellectual property, technical documentation and all Seller Documents remain the sole property of the Seller unless otherwise expressly agreed in writing.

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16.12 The Customer shall not reproduce, disclose, copy, modify, reverse engineer or provide any Seller Documents to any third party without the Seller's prior written consent, except where reasonably necessary for the construction, operation or maintenance of the Goods.

16.13 The Customer shall keep confidential all commercial, technical and pricing information supplied by the Seller and shall not disclose such information to any third party except where required by law or with the Seller's prior written consent.

16.14 The Seller reserves the right to amend these Terms and Conditions from time to time. Any amendment shall apply only to Contracts entered into after the Customer has been notified of the amended Terms and Conditions, unless otherwise agreed in writing.

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16.15 The Customer acknowledges that no employee, agent, contractor or representative of the Seller has authority to vary these Terms and Conditions unless the variation is made in writing and signed by a Director or other duly authorised representative of the Seller.

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16.16 These Terms and Conditions constitute the entire agreement between the parties relating to the Goods and Services and supersede all prior negotiations, understandings, discussions, representations and agreements, whether oral or written, except where expressly incorporated into the Contract.

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16.17 The rights, powers and remedies of the Seller under these Terms and Conditions are cumulative and are in addition to any rights, powers or remedies available at law, in equity or under any applicable legislation.

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16.18 Clauses which by their nature are intended to survive completion, termination or expiration of the Contract, including but not limited to payment obligations, warranties, indemnities, confidentiality, intellectual property, limitation of liability, dispute resolution, PPSA rights and governing law, shall continue in full force and effect notwithstanding completion, termination or expiration of the Contract.

16.19 These Terms and Conditions shall be interpreted fairly according to their commercial purpose and shall not be construed against the Seller merely because the Seller prepared or proposed them.

16.20 A printed or electronic copy of these Terms and Conditions shall be admissible in any legal proceedings as evidence of the contractual terms agreed between the parties.

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17. Force Majeure

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17.1 For the purposes of these Terms and Conditions, a Force Majeure Event means any event, circumstance or combination of circumstances beyond the reasonable control of the Seller which prevents, delays, hinders, interrupts or materially increases the cost of performing the Works, including, but not limited to:

1. acts of God;
2. flood;
3. storm;
4. cyclone;
5. earthquake;
6. bushfire;
7. fire;
8. explosion;
9. epidemic;
10. pandemic;
11. public health emergency;
12. quarantine restrictions;
13. war;
14. invasion;
15. terrorism;
16. civil unrest;
17. riot;
18. industrial disputes;
19. strikes;
20. lockouts;
21. labour shortages;
22. shortages of materials;
23. shortages of steel, aluminium or other raw materials;
24. shortages of components;
25. supplier delays;
26. supplier insolvency;
27. manufacturing delays;
28. (ab) transport disruptions;
29. (ac) freight delays;
30. (ad) shipping delays;
31. (ae) port congestion;
32. (af) customs delays;
33. (ag) utility failures;
34. (ah) electrical supply interruptions;
35. (ai) telecommunications failures;
36. (aj) cyber incidents affecting suppliers or critical infrastructure;
37. (ak) government directions;
38. (al) statutory authority requirements;
39. (am) changes in legislation;
40. (an) changes to Australian Standards;
41. (ao) changes to the National Construction Code;
42. (ap) delays caused by utility providers;
43. (aq) delays caused by government authorities;
44. (ar) delays caused by the Principal, Superintendent or other contractors;
45. (as) restricted Site access beyond the Seller's reasonable control; and
46. (at) any other event or circumstance beyond the reasonable control of the Seller.

17.2 The occurrence of a Force Majeure Event shall not constitute a breach of these Terms and Conditions by the Seller.

17.3 Where a Force Majeure Event occurs, the Seller shall be entitled to:

1. suspend performance of all or part of the Works;
2. extend any Delivery date;
3. extend the time for completion of the Works;
4. revise manufacturing and installation programmes;
5. delay procurement until supply becomes available;
6. substitute equivalent materials or components where reasonably necessary;
7. reschedule labour, subcontractors and plant;
8. recover all additional costs reasonably incurred as a result of the Force Majeure Event; and
9. claim such costs as a Variation.

17.4 Without limiting Clause 17.3, recoverable costs include:

1. labour escalation;
2. material escalation;
3. freight increases;
4. storage costs;
5. demurrage;
6. supplier price increases;
7. remobilisation;
8. additional engineering;
9. redesign;
10. additional project management;
11. extended supervision;
12. plant and equipment standing time;
13. accommodation;
14. travel; and
15. all other reasonable costs incurred by the Seller arising from the Force Majeure Event.
    

17.5 The Customer acknowledges that Force Majeure Events may affect global supply chains, manufacturing lead times, imported components, labour availability and freight availability and agrees that revised programmes resulting from such events shall be reasonable.

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17.6 The Customer shall not be entitled to:

1. terminate the Contract;
2. reject the Goods;
3. cancel any order;
4. refuse Delivery;
5. withhold payment;
6. deduct any amount from monies otherwise owing;
7. impose liquidated damages;
8. claim delay damages;
9. claim prolongation costs; or
10. claim any indirect or consequential loss,

solely because performance has been delayed or affected by a Force Majeure Event.

17.7 The Seller shall use reasonable commercial endeavours to minimise the effects of any Force Majeure Event but shall not be required to:

1. source materials at commercially unreasonable prices;
2. incur unreasonable expense;
3. expose itself to unacceptable commercial risk;
4. compromise safety; or
5. perform obligations that have become unlawful or impossible.

17.8 If a Force Majeure Event continues for more than ninety (90) consecutive days, either party may terminate the affected portion of the Contract by written notice.

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17.9 Where the Contract is terminated pursuant to Clause 17.8, the Customer shall immediately pay the Seller for:

1. all Goods supplied;
2. all Services performed;
3. all Goods manufactured or partially manufactured;
4. all Goods ordered from suppliers;
5. all engineering completed;
6. all drafting completed;
7. all procurement costs;
8. all freight costs incurred;
9. all storage costs;
10. all supplier cancellation charges;
11. all subcontractor costs;
12. all administration costs; and
13. all other costs reasonably incurred by the Seller up to the date of termination.

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17.10 Termination under this clause shall not affect any accrued rights, payment obligations or remedies existing at the date of termination.

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17.11 Nothing in this clause limits any other right or remedy available to the Seller under these Terms and Conditions, at law, in equity or pursuant to any applicable legislation.

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18. Intellectual Property and Confidential Information

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18.1 All Intellectual Property owned, developed, created, adapted or supplied by the Seller before, during or after the performance of the Works shall remain the sole and exclusive property of the Seller unless expressly agreed otherwise in writing.

18.2 For the purposes of these Terms and Conditions, Intellectual Property includes all present and future intellectual property rights, whether registered or unregistered, including but not limited to copyright, patents, designs, trademarks, trade secrets, confidential information, know-how and all proprietary rights recognised under Australian law.

18.3 Without limitation, the Seller retains ownership of all:

1. quotations;
2. specifications;
3. shop drawings;
4. fabrication drawings;
5. workshop drawings;
6. CAD files;
7. BIM models;
8. engineering drawings;
9. structural calculations;
10. engineering calculations;
11. load calculations;
12. product designs;
13. manufacturing methods;
14. fabrication processes;
15. installation methodologies;
16. programming;
17. PLC software;
18. HMI software;
19. firmware;
20. wiring diagrams;
21. electrical schematics;
22. hydraulic schematics;
23. commissioning procedures;
24. test documentation;
25. operation manuals;
26. maintenance manuals;
27. as-built drawings;
28. (ab) schedules;
29. (ac) reports;
30. (ad) technical documentation;
31. (ae) calculations;
32. (af) templates;
33. (ag) spreadsheets;
34. (ah) databases;
35. (ai) photographs;
36. (aj) videos;
37. (ak) software;
38. (al) documentation; and
39. (am) all Seller Documents.

18.4 Payment of the Contract Price shall not transfer ownership of any Intellectual Property unless expressly stated in writing.

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18.5 Subject to full payment of all monies owing, the Seller grants the Customer a non-exclusive, non-transferable, revocable licence to use the Seller Documents solely for the construction, operation and maintenance of the specific Project for which they were prepared.

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18.6 The licence granted under Clause 18.5:

1. is limited to the Project;
2. does not permit reproduction except as reasonably required for the Project;
3. does not permit modification without the Seller's written consent;
4. does not permit use on any other project;
5. automatically terminates if the Customer breaches these Terms and Conditions.
   

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18.7 The Customer shall not, without the Seller's prior written consent:

1. copy;
2. reproduce;
3. publish;
4. distribute;
5. transmit;
6. sell;
7. licence;
8. assign;
9. modify;
10. adapt;
11. reverse engineer;
12. decompile;
13. disassemble;
14. exploit commercially; or
15. provide to any third party,

any Seller Document or Intellectual Property except as expressly permitted under these Terms and Conditions.

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18.8 The Customer shall not use the Seller's drawings, engineering, calculations, specifications or other Seller Documents to manufacture, procure or commission equivalent Goods from another supplier without the Seller's prior written consent.

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18.9 The Customer shall not permit any third party to copy, reproduce, manufacture or fabricate Goods based wholly or partly upon the Seller's Intellectual Property.

18.10 Any improvements, modifications, amendments or enhancements made to the Seller's Intellectual Property shall immediately vest in and become the property of the Seller unless otherwise agreed in writing.

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18.11 The Seller may reuse any concepts, techniques, designs, engineering solutions, methodologies, processes or know-how developed during the Project for any other project without restriction.

18.12 All confidential information supplied by the Seller shall remain confidential and shall not be disclosed except:

1. with the Seller's written consent;
2. where required by law; or
3. where reasonably necessary for the completion of the Project.

18.13 Confidential Information includes all commercial, financial, technical and operational information, including pricing, discounts, engineering methodologies, supplier information, manufacturing techniques, software, programming, customer lists, business strategies and trade secrets.

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18.14 The Customer shall implement reasonable measures to protect the confidentiality of all Seller Documents and shall ensure that its employees, consultants, subcontractors and agents comply with this clause.

18.15 Upon request by the Seller, or upon completion or termination of the Contract, the Customer shall promptly return or permanently destroy all Seller Documents not reasonably required for ongoing operation or maintenance of the Goods and shall, if requested, provide written confirmation that it has done so.

18.16 Nothing contained in these Terms and Conditions grants the Customer any ownership interest in the Seller's Intellectual Property.

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18.17 The Customer acknowledges that unauthorised use of the Seller's Intellectual Property may cause substantial and irreparable harm for which damages alone may be an inadequate remedy.

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18.18 The Seller shall be entitled to seek injunctive relief, specific performance or any other equitable remedy in addition to any claim for damages arising from a breach of this clause.

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18.19 The Customer shall indemnify the Seller against all loss, damage, liability, cost and expense (including legal costs on a full indemnity basis) arising from any unauthorised use, reproduction, disclosure or infringement of the Seller's Intellectual Property by the Customer or any person acting on its behalf.

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18.20 The obligations contained in this clause survive Practical Completion, Final Completion, termination, cancellation and expiry of the Contract and remain enforceable for so long as the Seller's Intellectual Property rights continue to exist.

18.21 Nothing in this clause limits any rights or remedies available to the Seller under the Copyright Act 1968 (Cth), the Designs Act 2003 (Cth), the Patents Act 1990 (Cth), the Trade Marks Act 1995 (Cth), the common law or any other applicable legislation.

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19. Dispute Resolution

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19.1 If a dispute arises out of or in connection with these Terms and Conditions or any Contract between the parties, either party may give the other written notice identifying the nature of the dispute in reasonable detail.
‍

19.2 Within seven (7) Business Days after receipt of a notice under Clause 19.1, a representative of each party having authority to resolve the dispute shall meet (in person or by electronic means) and use reasonable commercial endeavours to resolve the dispute.
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19.3 If the dispute is not resolved within fourteen (14) Business Days after the meeting referred to in Clause 19.2, either party may refer the dispute to mediation administered by a mediator agreed between the parties or, failing agreement within seven (7) Business Days, appointed by the President of the Law Institute of Victoria or that person's nominee.
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19.4 Unless otherwise agreed in writing, the mediation shall be conducted in Melbourne, Victoria.
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19.5 Each party shall bear its own legal and other costs associated with the mediation and shall share equally the mediator's fees and venue costs unless otherwise agreed or determined by the mediator.
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19.6 Nothing in this clause prevents the Seller from:

1. issuing an invoice;
2. issuing a payment claim;
3. commencing adjudication under any applicable Security of Payment legislation;
4. recovering a debt;
5. enforcing a security interest;
6. exercising rights under the Personal Property Securities Act 2009 (Cth);
7. commencing proceedings for urgent interlocutory or injunctive relief;
8. recovering possession of Goods;
9. suspending the Works where entitled under these Terms and Conditions or applicable legislation; or
10. exercising any other contractual or statutory right.

19.7 The existence of a dispute shall not relieve the Customer of its obligation to pay:

1. any undisputed amount;
2. any amount admitted to be owing;
3. any amount the Customer is required to pay under applicable legislation; or
4. any amount determined by a court, tribunal or adjudicator to be payable.

19.8 The Customer shall not withhold, deduct, set-off or delay payment of any amount otherwise due solely because a dispute exists unless expressly entitled to do so by law.

19.9 Pending resolution of any dispute, each party shall continue to perform its obligations under the Contract to the extent reasonably practicable, provided that the Seller shall not be required to continue supplying Goods or Services where it is otherwise entitled to suspend performance under these Terms and Conditions or applicable legislation.

19.10 Any settlement reached between the parties shall not constitute a waiver of any rights in relation to future Contracts unless expressly stated in writing.

19.11 A failure by either party to comply with this clause shall not prevent the Seller from exercising any right or remedy available under these Terms and Conditions, at law, in equity or under any applicable legislation.

19.12 The rights and remedies contained in this clause are cumulative and do not exclude any other rights or remedies available to the Seller.

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20. Interpretation, Survival and Miscellaneous

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20.1 These Terms and Conditions, together with any quotation, proposal, scope of works, approved Variation, warranty document and any other document expressly incorporated by reference, constitute the entire agreement between the parties relating to the Goods and Services and supersede all prior negotiations, discussions, understandings, representations and agreements, whether oral or written.

20.2 No representation, statement, promise, warranty or undertaking not expressly contained in these Terms and Conditions shall be binding upon the Seller unless made in writing and signed by a Director or duly authorised representative of the Seller.
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20.3 These Terms and Conditions may only be amended by a written agreement signed by both parties.
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20.4 If any provision of these Terms and Conditions is held to be invalid, illegal or unenforceable, that provision shall be severed only to the extent necessary and the remaining provisions shall continue in full force and effect.
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20.5 Any right, power or remedy conferred upon the Seller by these Terms and Conditions is cumulative and does not exclude any other right, power or remedy available at law, in equity or under any applicable legislation.
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20.6 A failure or delay by the Seller to exercise any right, power or remedy shall not operate as a waiver of that right, nor shall any single or partial exercise prevent any further exercise of that or any other right.
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20.7 No waiver by the Seller shall be effective unless made in writing and signed by a Director or duly authorised representative of the Seller.
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20.8 The Customer shall execute all documents and do all things reasonably required by the Seller to give effect to these Terms and Conditions or to protect the Seller's rights.
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20.9 The Seller may assign, novate, subcontract or otherwise deal with any of its rights or obligations under these Terms and Conditions without the Customer's consent, provided that doing so does not diminish any non-excludable rights of the Customer.
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20.10 The Customer shall not assign, novate or otherwise transfer any Contract or any right or obligation arising under it without the Seller's prior written consent.
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20.11 Where these Terms and Conditions are entered into by more than one Customer, each Customer shall be jointly and severally liable for all obligations arising under the Contract.
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20.12 References to legislation include all amendments, re-enactments and replacement legislation from time to time.
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20.13 Headings are included for convenience only and do not affect the interpretation of these Terms and Conditions.
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20.14 Words importing the singular include the plural and vice versa, words importing one gender include every gender, and references to a person include an individual, corporation, partnership, trust, joint venture, government authority and any other legal entity.
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20.15 References to "including", "includes" or similar expressions shall be construed without limitation.
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20.16 These Terms and Conditions shall be governed by the laws of the State of Victoria and the laws of the Commonwealth of Australia applicable therein.

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20.17 The parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria and any courts competent to hear appeals from those courts.
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20.18 These Terms and Conditions may be executed electronically or by counterparts, each of which shall constitute an original and together constitute one agreement.
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20.19 Any provision which by its nature is intended to survive termination, completion, cancellation or expiry of the Contract, including without limitation payment obligations, indemnities, warranties, confidentiality, intellectual property rights, limitation of liability, dispute resolution, PPSA rights and governing law, shall survive and continue in full force and effect.
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20.20 These Terms and Conditions shall be interpreted according to their commercial purpose and shall not be construed against the Seller merely because the Seller prepared or proposed them.
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20.21 A printed or electronic copy of these Terms and Conditions shall be admissible in any legal proceedings as evidence of the contractual terms agreed between the parties.