Terms and Conditions of sale – WorkArena

1 Definitions

In these Terms and Conditions, the words below have the following meanings:
Account Application means the form approved by Supplier and completed by the Customer for an account with Supplier for the provision of Goods and/or Services.
Agreement means each Offer which is accepted by Supplier under clause 3.2.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Business Day means any day except a Saturday, Sunday or public holiday in New South Wales, Australia.
Confidential Information means all information and other content disclosed by the Disclosing Party to the Receiving Party and includes these Terms and the prices of the Goods or Services but excludes information that:

• (a) is public knowledge or becomes available to the Receiving Party from a source other than the Disclosing Party (otherwise than as a result of a breach of confidentiality); or
• (b) is rightfully known to, or in the possession or control of the Receiving Party and not subject to an obligation of confidentiality in accordance with the terms of an Agreement.

Consequential Loss means:

• (a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
• (b) any loss beyond the normal measure of damages.

Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.
Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
Customer means the entity or person who has agreed to be bound by these Terms and who requested that Goods and/or Services be supplied to it by Supplier.
Customer Specifications has the meaning given to it in clause 14.1.
Default Rate means the interest rate which is 5% above the Cash Rate Target published by the Reserve Bank of Australia from time to time.
Delivery Fee means:

• (a) the delivery fee set out in a Quote or agreed in writing between the parties; or
• (b) if no delivery fee is set out in a Quote or agreed in writing between the parties, the costs of Supplier incurred in delivering the Goods to the Customer.

Deposit means a proportion of the price specified in the Quote or Order.
Disclosing Party means a party who discloses its Confidential Information to a party to these Terms and Conditions or an Agreement.
Due Date is defined in clause 5.4.
Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party.
Goods means the goods to be supplied by Supplier to the Customer under an Agreement.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those ort like rights and right to protect trade secrets and know how, throughout the world for the full period of the rights and renewals and extensions.
Invoice has the meaning provided to it in clause 5.3.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
Offer has the meaning provided to it in clause 3.1.
Order means any order or other request by or for the Customer to Supplier to supply to the Customer any Goods or provide it with any Services (or both), whether the order or request is written, verbal or implied in the circumstances and which may have been given in response to a Quote.
Personal Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Purchase Price has the meaning provided to it in clause 5.1.
Quotation or Quote means a quote or proposal, if any, provided by Supplier to the Customer in respect of the Goods and/or Services.
Receiving Party means a party who receives Confidential Information from or on behalf of the Disclosing Party.
Rise & Fall means any addition or reduction in actual costs incurred by the Company:

• (a) in importing the Goods into Australia, to the extent the difference in costs is due to a change in the exchange rate of the Australian dollar and is incurred prior to the date of delivery of the Goods; and
• (b) to the extent the Delivery Fee is based on clause (a) of the definition of ‘Delivery Fee’, in delivering the Goods to the Customer caused by factors outside the reasonable control of the Company.

Services means the services to be supplied by Supplier to the Customer under an Agreement.
Specifications means any physical, qualitative, technical or descriptive specifications, dimensions, weights or other particulars of the Goods or Services or photographs or illustrations of the Goods which are supplied by Supplier or which may be available on the internet, including as provided in any Quote, Order, price list, catalogue, brochure or other document which describes the Goods or Services.
Supplier means Work Arena Pty Limited ACN 089 935 259.
Tax or Taxes means any tax, levy, duty, charge, impost, fee, deduction, compulsory loan or withholding (including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, excise and import duties, consumption tax, value added tax or any other taxes, levies or charges) which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of those amounts.
Terms means these Terms and Conditions.
Trading Limit means the value of any trading account facility granted by Supplier to the Customer pursuant to any account created under the Account Application.

2 Application

These Terms apply to and govern the supply by Supplier of Goods and provision of Services to customers from time to time and, more specifically, apply to and govern the supply by Supplier of Goods and/or Services to the Customer which are to be provided under an Offer accepted by Supplier.

3 Formation of Agreement

3.1 The Customer acknowledges and agrees that by submitting an Order to Supplier the Customer makes an offer to Supplier for Supplier to supply it with the Goods and/or provide it with the Services on the terms of the following documents with which it agrees to comply:

• (a) these Terms;
• (b) the Order; and
• (c) the Quote (if any),
• (Offer).

3.2 A contract will be formed between Supplier and the Customer in respect of each Offer upon the earlier of:

• (a) Supplier notifying the Customer in writing that the Supplier accepts the Customer’s Offer;
• (b) Supplier accepting, in full or part, payment from the Customer (including a Deposit) for any Goods or Services the subject of the Offer; or
• (c) Supplier otherwise confirming its acceptance of the Offer.

3.3 An Agreement formed under clause 3.2 will comprise these Terms, any Account Application, the Order (only to the extent that any additional terms in the Order are accepted by Supplier in writing) and the Quote (if any).
3.4 Supplier is not bound to accept any Offer and may decide not to accept any Offer for any reason and in the sole discretion of Supplier.

4 Deposit

4.1 Supplier may require that the Customer pay a Deposit to Supplier which will be payable on the same terms as clause 5.4.
4.2 Subject to clause 4.3, the Deposit will not be refundable and Supplier will be entitled to keep the Deposit at the time it accepts the Offer.
4.3 The Deposit will only be refundable:

• (a) if Supplier does not accept the Offer or the Agreement is terminated under clauses 18.1 or 19.2 prior to Supplier having supplied any Goods or Services; or
• (b) if Customer terminates the relevant Agreement under clause 18.2 or 19.1.

5 Price and payment

5.1 Unless otherwise agreed by the parties, the price the Customer must pay for the Goods and/or Services under each Agreement will be:

• (a) the price for the Goods and/or Services specified in the Quote or, if there is no Quote, in the Order; plus
• (b) the Delivery Fee,
• (Purchase Price), as adjusted by notice from the Company to the Customer to account for Rise & Fall.

5.2 Subject to clause 16, unless otherwise expressly specified by Supplier or in these Terms, all prices stated are stated exclusive of Taxes and the Customer is solely responsible for the payment of all Taxes levied or payable in respect of the Goods and/or Services and must immediately upon request by Supplier provide Supplier with evidence of payment of any Taxes.
5.3 Supplier may invoice the Customer for the Purchase Price at any time following formation of the relevant Agreement (Invoice).
5.4 Subject to clause 5.5, unless otherwise agreed in writing between the Customer and Supplier the due date for payment by the Customer to Supplier of the Purchase Price for the Goods and/or Services supplied pursuant to an Agreement (Due Date) is 14 days from the date of the Invoice.
5.5 If:

• (a) the Customer has previously failed to make any payment to Supplier by the due date for that payment (whether under these Terms or otherwise); or
• (b) the creditworthiness of the Customer is, in Supplier’s sole opinion, unsatisfactory,
  Supplier may require payment of the Purchase Price in full prior to Supplier delivering the relevant Goods or providing the Services.

5.6 If the Customer fails to make any payment by the Due Date, and the Customer has not remedied the failure to make payment within 7 days of receiving notice of the failure to make payment or is the subject of an Insolvency Event, then, without prejudice to any other right or remedy available to Supplier (including any termination rights under clause 18.1) and to the extent permitted by law, Supplier may, in its sole discretion, elect to do any one or more of the following:

• (a) suspend any further deliveries to the Customer arising from any Agreement;
• (b) enter the property of the Customer in order to repossess the Goods and the Customer grants Supplier and its agents an irrevocable licence to do so;
• (c) dismantle any other goods into which the Goods have been installed or incorporated and remove the Goods from those goods;
• (d) charge the Customer interest (both before and after any judgement) on the unpaid amount at the Default Rate, which interest will accrue and be chargeable from the first day on which an amount becomes overdue until Supplier receives payment of all amounts (including all interest) by way of cleared funds;
• (e) cancel any Trading Limit or account facilities previously granted to the Customer by Supplier (including under the Account Application); and
• (f) exercise any rights which Supplier may have under law, including the Personal Property Securities Act 2009 (Cth).

5.7 If the Customer fails to make any payment by the Due Date the Customer must pay to Supplier on demand all amounts incurred by Supplier in recovering or seeking to recover the payment the Customer owes to Supplier (including any fees or commission paid to a debt collector, mercantile agent or similar).
5.8 A party (First Party) may not set off or combine any amount owing by the other party (Second Party) to the First Party, whether or not due for payment, against any money due for payment by the First Party to the Second Party under an Agreement and the First Party must pay, and not withhold, any amount due to the Second Party under an Agreement notwithstanding that the First Party may be in dispute with the Second Party regarding the Goods or Services supplied under an Agreement.

6 Delivery of Goods and provision of Services

6.1 Supplier will deliver the Goods to the Customer in the manner:

• (a) determined by Supplier; or
• (b) as otherwise agreed between Supplier and the Customer (including collection by the Customer).

6.2 Supplier will use its best endeavours to give reasonable notice before delivering Goods or making the Goods available for collection and providing the Services at the place of delivery or service provision (excluding on any public holiday at the place of delivery or service provision).
6.3 The Customer expressly authorises and grants Supplier and its agents an express, irrevocable licence to enter the premises of the Customer or relevant third party in order for Supplier to deliver the Goods or provide the Services.
6.4 If the Customer is required to collect the Goods or the parties have agreed that the Customer will collect the Goods, then the Customer must collect those Goods within three Business Days of being notified by Supplier that the Goods are ready to be collected.
6.5 There must be a representative of the Customer present at the delivery location at the time delivery is made of the Goods and, if no representative is present, a redelivery fee equal to the Delivery Fee may be charged by Supplier.
6.6 Without limiting any rights which the Customer may have under the Australian Consumer Law, the Customer must, prior to taking possession of the Goods, inspect the Goods and within 14 days notify Supplier in writing if the Goods are not fit for any purpose for which the Customer intends to use the Goods, are less than the number meant to be delivered under the Agreement, have any defect or otherwise do not meet any Specifications.
6.7 The Customer acknowledges that, after the time the Customer makes the Offer, a Good which is subject to an Offer may be modified by Supplier as a result of an improvement in technology or because of a requirement imposed by law.
6.8 Without limiting any other obligation of the Customer under an Agreement, the Customer must take all necessary steps and fulfill all requirements to accept delivery of the Goods from Supplier.
6.9 In the event Supplier is unable to deliver the Goods to the Customer because of an act or omission of the Customer, Supplier will be entitled to:

• (a) recover on demand from the Customer any Loss incurred by Supplier as a result of inability to deliver the Goods (including payment for those Goods if those Goods cannot be resold or reused by Supplier); and
• (b) at the risk of the Customer and without limiting any other rights Supplier may have, store any Goods which the Customer refuses to take delivery of or fails to collect for a storage fee of $3 per cubic metre per day (7 day week) in respect of each day that delivery or collection is delayed past the agreed delivery date.

6.10 Upon acceptance of an Order, Supplier must notify the Customer of any variation to the shipment or delivery date for the Goods set out in the Quote. Unless the Customer objects in writing within seven (7) days of such notification from the Supplier, the period of shipment or delivery notified will be varied accordingly. Notwithstanding the preceding, the Customer acknowledges that:

• (a) shipment and delivery dates are estimates only and time will not be of the essence in relation to shipment or delivery of Goods;
• (b) if Supplier does not currently stock a Good, then there may be a delay in the supply of that Good until Supplier has restocked that Good; and
• (c) if a Good needs to be delivered urgently or overnight to the Customer, Supplier may agree to expedite delivery if the Customer agrees to pay an additional fee for that expedited delivery.

6.11 Without limiting clause 6.10, Supplier may deliver or provide a portion of the Goods or Services and may invoice or otherwise charge the Customer for that portion. The Customer may not refuse to accept delivery of the Goods or to pay for the Goods or Services because only a portion of the quantity ordered was delivered or provided and the Customer agrees that Supplier will not be liable for any Loss that the Customer suffers as a result of any delay or cancellation.
6.12 If there are multiple Agreements in place at any one time, then Supplier may, in its absolute discretion, determine in which order it satisfies the delivery of the Goods and provision of Services under the Agreements.
6.13 The Customer acknowledges and agrees that:

• (a) Supplier may, but will not be required to, provide proof of delivery or other similar documentation (whether at the time of delivery or after);
• (b) it will not request proof of delivery or other similar documentation from Supplier; and
• (c) it will not dispute any Invoice based on (in whole or in part) proof of delivery or other similar documentation not having been provided by Supplier.

7 Return of Goods

7.1 The terms of this clause 7 are subject to clause 10 and, if a Good is not of acceptable quality, faulty, defective or damaged, the Customer may have rights under the Australian Consumer Law which are not affected by this clause 7.
7.2 Subject always to any applicable provisions of the Australian Consumer Law, the Customer may only return the Goods to Supplier in accordance with Supplier’s ‘Shipping and Returns’ policy available here: https://www.workarena.com.au/shipping-returns/.
7.3 Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

• (a) to cancel your service contract with us; and
• (b) to a refund for the unused portion, or to compensation for its reduced value.

7.4 You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

8 Title and risk of Goods

8.1 Title to, and property in any Goods supplied under an Agreement remain with Supplier and will only pass to the Customer once all moneys owing by the Customer to Supplier in respect of the Agreement or any other agreement or arrangement between the Customer and Supplier have been paid in full.
8.2 Risk in the Goods passes to the Customer upon the earlier of:

• (a) completion of delivery of the Goods at the delivery location; and
• (b) if the Goods are to be collected by the Customer, on the date which is three Business Days after the date on which Supplier notified the Customer that the Goods are ready to be collected.

8.3 The Customer is responsible for all Loss and damage to the Goods after risk in the Goods passes to the Customer in accordance with clause 8.2.
8.4 The Customer is responsible for arranging, and taking out in its own name and its own cost, any insurance in respect of the Goods from the time risk passes to the Customer under this clause and Supplier is not obliged to give the Customer a notice referred to in section 35(3) of the Sale of Goods Act 1923 (NSW) (or any equivalent legislation).
8.5 In the event that the Customer is required to return any Goods to Supplier, risk in the Goods passes to Supplier on confirmation of receipt of the Goods by Supplier.
8.6 Until full title, property and ownership of the Goods passes to the Customer in accordance with clause 8.1, and while the Goods remain in the Customer’s full control and possession:

• (a) subject to clause 8.8, the Customer must hold the Goods as Supplier’s fiduciary agent and bailee and must not sell, lease, dispose of or otherwise deal with the Goods in any way without Supplier’s prior written consent;
• (b) the Customer must keep and maintain the Goods in good and substantial repair;
• (c) the Customer must insure the Goods for their full replacement value (which must not be less than the Purchase Price) and must store the relevant Goods separately from any other goods and in a way that enables the Goods to be clearly identified as Supplier’s and referrable to a particular Invoice;
• (d) Supplier may enter the premises of the Customer or any third party where the Goods are stored during the hours of 9.00 am to 5.00 pm to inspect the Goods.
• (e) Supplier may at any time after payment is overdue require the Customer to deliver up the Goods to Supplier and, if the Customer fails to deliver up the Goods immediately, Supplier may enter the premises of the Customer or any third party where the Goods are stored and repossess them;
• (f) the Customer must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the Goods and if the Customer does pledge or in any way charge by way of security, for any indebtedness, any of the Goods for which property and ownership has not passed to the Customer, the Customer must remove the pledge, charge or security interest immediately and all moneys owing by the Customer to Supplier will (without prejudice to any other right or remedy of Supplier) immediately become due and payable to Supplier; and
• (g) the Customer must not remove, deface, alter, obliterate or cover up any names, marks, designs, numbers, code or writing on the Goods.

8.7 For the purposes of Supplier exercising its rights under clauses 8.6(d) and 8.6(e), the Customer expressly authorises and grants Supplier and its agents an express, irrevocable licence to enter the premises of the Customer or relevant third party to inspect the Goods or to remove or arrange for the removal of the Goods.
8.8 Notwithstanding that title to the Goods has not passed to the Customer under clause 8.1, the Customer may, subject to obtaining Supplier’s prior written approval, resell the Goods or any part of them in the name of the Customer but only as agent for Supplier and may deliver any Goods so sold to the buyer of those Goods but only in the ordinary course of its business and on terms which will not prejudice Supplier’s ability to obtain any amount paid or due to be paid by the buyer of Goods (Sale Proceeds) and:

• (a) any Sale Proceeds must be held by the Customer on trust for Supplier and any amounts received by the Customer must be banked in a separate bank account relating only to the sale proceeds of any Goods and must be forwarded as soon as possible to Supplier in satisfaction of any amount owed by the Customer in respect of the Goods;
• (b) the Customer must keep and maintain separate records in relation to the Sale Proceeds received and held by the Customer and must provide those records to Supplier immediately upon request by Supplier; and
• (c) if and when the full amount due to Supplier in respect of the Goods has been received by Supplier, any further Sale Proceeds may be retained by the Customer.

8.9 The Customer must immediately cease the resale of any Goods under clause 8.8 if:

• (a) Supplier revokes any consent it has given to the Customer to resell the Goods under clause 8.8; or
• (b) the Customer fails to make any payment under an Agreement by the relevant Due Date.

8.10 In the event that the Customer processes, incorporates, transforms or installs the Goods (or any portion of them) into any other goods, buildings or land then the Customer must:

• (a) keep and maintain records in relation to the Goods which have been processed, incorporated, transformed or installed and the goods, buildings or land in which the Goods have been processed, incorporated, transformed or installed; and
• (b) hold a proportion of any payment (Relevant Proportion) received by the Customer for those goods, buildings or land on trust for Supplier and the Customer acknowledges that the Relevant Proportion must be not less than the dollar value of the portion of the Goods processed, incorporated, transformed or installed.

8.11 If an Insolvency Event occurs in respect of the Customer then, without the need for notice or demand by Supplier, the Customer acknowledges that any sale or purported sale of the Goods will not be in the ordinary course of the Customer’s business and the proceeds of any Goods sold in those circumstances will, to the extent of any money owing by the Customer to Supplier, be held on trust for Supplier by the administrator, controller or similar officer as the case may be, or if there is no such officer, by the Customer.

9 PPSA

9.1 Words and expressions used in this clause 9 which are not defined in these Terms but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given to them in the PPSA.
9.2 Unless a Customer has paid for Goods in respect of an Agreement before they are delivered to the Customer, each Customer acknowledges that:

• (a) the Agreement for the supply of Goods created under these Terms is a security agreement for the purposes of the PPSA, under which the Customer grants Supplier a security interest in the Goods and over any amount owed to the Customer in respect of the Goods (Account) to secure all monies owing by the Customer to Supplier from time to time;
• (b) where Supplier has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply; and
• (c) Supplier is not obliged to act in any way to dispose of or to retain any Goods which have been seized by Supplier or any person nominated by Supplier under its rights under the PPSA.

9.3 Without limiting anything else in these Terms, the Customer consents to Supplier effecting a registration on the register in relation to any security interest created by or arising in connection with, or contemplated by an Agreement or these Terms, including in relation to the Goods and any Account. The Customer agrees to promptly do all things necessary to ensure that any security interest created under these Terms is perfected and remains continuously perfected, Supplier’s priority position is preserved or secured and any defect in any security interest, including registration, is overcome.
9.4 The Customer must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by Supplier for that purpose in relation to the Goods or the Account). Without limiting the foregoing, the Customer must:

• (a) register a security interest in relation to the Goods where the Customer on sells the Goods to a third party or incorporates the Goods into another good or product;
• (b) where appropriate, take reasonable steps to identify security interests in relation to the Goods in the Customer’s favour and to perfect and protect them, with the highest priority reasonably available; and
• (c) not register a financing change statement in relation to any registration made under paragraphs (a) or (b) without Supplier’s prior written consent.

9.5 The Customer must indemnify, and on demand reimburse, Supplier for all expenses incurred in registering a financing statement or financing change statement on the register, and for the enforcement of any rights arising out of any of Supplier’s security interests.
9.6 The Customer must not change its name, address or contact details without providing prior written notice to Supplier.
9.7 To the extent that the PPSA permits, the Customer waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA.
9.8 The Customer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if Supplier has given prior written consent.

10 Liability

10.1 If the Customer is a Consumer and Supplier supplies Personal Goods or Services to the Customer, Supplier acknowledges that the Customer may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to the Personal Goods or Services supplied by Supplier and nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of those rights.
10.2 If the Customer is a Consumer and any goods or services supplied by Supplier to the Customer are non Personal Goods or Services, Supplier’s liability to the Customer in connection with any breach of the Consumer Guarantees in respect of those non Personal Goods or Services is limited (at Supplier’s discretion) to:

• (a) in the case of Goods:
  • (i) the replacement of the Goods or the supply of equivalent goods;
  • (ii) the repair of the Goods;
  • (iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
  • (iv) the payment of the cost of having the Goods repaired; and
• (b) in the case of Services:
  • (i) the supplying the Services again; or
  • (ii) the payment of the cost of having the Services supplied again.

10.3 Subject to clause 10.7, if the Customer makes a claim against Supplier in connection with or arising out of these Terms which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, Supplier’s total aggregate liability arising in connection with all such claims shall be limited to an amount equal to the Purchase Price of the Goods and/or Services in connection with which the relevant liability arose.
10.4 In relation to the supply of Goods which are non Personal Goods or Services, if Supplier is liable to indemnify the Customer under section 274 of the Australian Consumer Law, Supplier’s liability to the Customer is limited to an amount equal to the lower of:

• (a) the cost of replacing the Goods;
• (b) the cost of obtaining equivalent Goods; or
• (c) the cost of having the Goods repaired.

10.5 Subject to clauses 10.6 and 10.7, the Customer’s total aggregate liability arising in connection with all claims Supplier makes against the Customer in connection with or arising out of these Terms shall be limited to an amount equal to the Purchase Price of the Goods and/or Services in connection with which the relevant liability arose. .
10.6 Clause 10.5 does apply in relation to any claim which Supplier may make against the Customer for payment to Supplier of any payment due under these Terms or an Agreement (including payment of the Purchase Price or any amount payable under clause 5.7).
10.7 Without limiting and subject to clauses 10.1 and 10.2, neither party shall be liable to the other party for any Consequential Loss.

11 Notification of claims

11.1 The Customer must notify Supplier immediately if it becomes aware of:

• (a) any claim; or
• (b) any death, serious injury or serious illness,
  in respect of, or caused by, the Goods or other goods of which the Goods are a component or mixed with and the Customer will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.

11.2 If Goods are sold by the Customer to a third party for commercial use by that third party, the Customer must impose on the third party an obligation to notify the Customer immediately if the third party becomes aware of:

• (a) any claim; or
• (b) any death, serious injury or serious illness,
  in respect of the Goods or other goods of which the Goods are a component or mixed with and to take all reasonable steps to mitigate Loss arising as a consequence of the claim, death, serious injury or serious illness.

11.3 The Customer must, and must impose on any third party to whom it sells the Goods an obligation to:

• (a) not, without Supplier’s express written consent, make any representation to any Consumer regarding the purpose, performance or durability of the Goods, which is in breach of the Australian Consumer Law;
• (b) take all steps and do all things necessary to promptly pass on to Supplier any claim made by a Consumer arising out of or in connection with the Australian Consumer Law and must, at the Customer’s expense, assist Supplier to comply with its obligations under the Australian Consumer Law;
• (c) not, other than in respect of any warranties or guarantees which cannot be excluded by law, make on behalf of Supplier any undertaking, assertion, statement, warranty, admission or other representation in respect of the Goods which is inconsistent with the Agreement under which the Goods are supplied; and
• (d) not agree to settle any claim made by a Consumer without the prior written consent of Supplier.

12 Intellectual Property

12.1 The parties acknowledge and agree that, unless otherwise agreed in writing, as between Supplier and the Customer all Intellectual Property Rights in the Goods and any material created as part of the Services vests in and exclusively belongs to and are irrevocably assigned to Supplier and the Customer agrees that it must not infringe or use the Intellectual Property Rights of Supplier which exist in the Goods or materials created as part of the Services without the prior written consent of Supplier.
12.2 The Customer must not modify, adapt, vary, reverse engineer, disassemble or copy all or any part of any Good without the prior written consent of Supplier.
12.3 The Customer must not remove, deface, change, distort, delete or cover up:

• (a) any name plate or mark on the Goods which indicates that Supplier is the owner of the Goods; or
• (b) any patent, copyright or other proprietary notices which appear in writing on or in any part of the Goods.

12.4 The Customer grants to the Company a non-exclusive, royalty free licence to use, reproduce, modify, adapt and further develop all Intellectual Property Rights in those portions of the Customer Background Materials which are required to enable the Company to supply the Goods or perform the Services.
12.5 The Customer warrants that Supplier’s use of the Customer Background Material in accordance with clause 12.4 will not infringe the Intellectual Property Rights owned by a third party.

13 Indemnity

The Customer indemnifies Supplier and holds Supplier harmless from and against all Losses (including all legal costs, and any other associated fees and costs) for which Supplier incurs as a result of the warranty in clause 12.5 being or becoming untrue.

14 Specifications

14.1 If an Offer has been accepted by Supplier, the Customer acknowledges that the Offer was accepted by Supplier on the basis of, and in reliance upon, any information, drawings, specifications, data, representations, statements and documents provided by the Customer, set out in an Order or otherwise approved by the Customer (Customer Specifications).
14.2 The Specifications are approximate only and Supplier makes no representation or warranty as to the completeness or accuracy of the Specifications and the Customer is responsible for making its own enquiries in relation to the completeness and accuracy of the Specifications provided.
14.3 Where any instructions, materials or information in whatever form (including any Customer Specifications) are required to be provided by the Customer to Supplier before Supplier can proceed with or complete the provision of the Goods or Services, those instructions, materials or information must be supplied by the Customer to Supplier within a reasonable time (as determined by Supplier) so as to enable Supplier to deliver the Goods or Services within any agreed time frame.
14.4 Supplier may make changes to the specifications, dimensions, weights or other particulars of the Goods as may be required from time to time by law or any safety or manufacturing requirements.

15 Confidentiality

15.1 The Receiving Party:

• (a) may use Confidential Information solely for the purposes of the relevant Agreement;
• (b) must keep confidential all Confidential Information; and
• (c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by the Disclosing Party; (ii) as required by law or securities exchange regulation; or (iii) with the prior written consent of the Disclosing Party.

15.2 The Receiving Party must notify the Disclosing Party immediately once it becomes aware of any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.

16 GST

16.1 In this clause, words and expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act.
16.2 Unless otherwise expressly stated in writing in an Agreement, all amounts payable by the Customer in connection with an Agreement do not include an amount for GST. If GST is payable on any supply made by Supplier under these Terms, the Customer must pay to Supplier, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Customer is required by these Terms to reimburse or indemnify Supplier for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that Supplier will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by Supplier in respect of the reimbursement or payment.

17 Force Majeure

17.1 Supplier will not be liable for any failure to perform or delay in performing its obligations under an Agreement if that failure or delay is due to a Force Majeure Event.
17.2 If a Force Majeure Event under clause 17.1 exceeds 20 Business Days, Supplier may immediately terminate the Agreement by written notice to the Customer.

18 Termination

18.1 Without limiting Supplier’s other rights under these Terms, and to the extent permitted by law, Supplier may terminate any and all Agreements and any account facility under an Account Application with immediate effect by written notice to the Customer if:

• (a) the Customer fails to make any payment under the Agreement to Supplier by the due date for that payment and the Customer has not remedied the failure to make payment within 7 days of receiving notice of the failure to make payment;
• (b) the Customer is the subject of an Insolvency Event;
• (c) the Customer has breached any material term of the relevant Agreement (including these Terms) which is not capable of remedy;
• (d) the Customer has materially breached any term of the relevant Agreement (including these Terms) which is not capable of remedy;
• (e) the Customer has breached any term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 30 days of receiving notice requiring the breach to be remedied; or
• (f) in accordance with clause 17.2.

18.2 Without limiting the Customer’s other rights under these Terms, and to the extent permitted by law, the Customer may terminate any and all Agreements and any account facility under an Account Application with immediate effect by written notice to Supplier if:

• (a) Supplier is the subject of an Insolvency Event;
• (b) Supplier has breached any material term of the relevant Agreement (including these Terms) which is not capable of remedy;
• (c) Supplier has materially breached any term of the relevant Agreement (including these Terms) which is not capable of remedy; or
• (d) Supplier has breached a term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 30 days of receiving notice requiring the breach to be remedied.

18.3 On termination of an Agreement:

• (a) the Customer must not sell or part with possession (other than as required under clause 18.3(b)) any Goods the subject of the Agreement (other than any Goods which have been paid for);
• (b) the Customer must, at its cost, immediately return to Supplier all Goods the subject of the Agreement (other than any Goods which have been paid for)
• (c) Supplier may enter the premises of the Customer or any third party to repossess any Goods not returned under clause 18.3(b) and the Customer expressly authorises and grants Supplier and its agents an express, irrevocable licence to enter the premises of the Customer or relevant third party to remove or arrange for the removal of those Goods; and
• (d) all money owed by the Customer to Supplier will become immediately due and payable.

18.4 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.

19 Cancellation

19.1 Without prejudice to any rights under the Australian Consumer Law or these Terms, the Customer may not cancel an Agreement after it becomes binding under clause 3.2 except with the prior written consent of the Supplier.
19.2 Supplier may cancel or suspend any Agreement effective immediately upon providing the Customer with written notice of cancellation or suspension where Supplier is prevented or unable to supply the Goods because the Goods are not stock or have been discontinued, provided that if Supplier cancels an Agreement under this clause 19 it will refund to the Customer any amounts already paid by the Customer for the Goods or Services subject to the cancellation and which are not provided to the Customer. The refund of any amounts will be the Customer’s sole remedy against Supplier in respect of any cancellation under this clause 19.

20 Acknowledgements and representations

20.1 By making an Offer, the Customer warrants and represents to Supplier that it has read and understood these Terms prior to making the Offer, and agrees to be bound by them in full.
20.2 Any price list, goods lists or other similar documents or catalogues (Documents) issued by or on behalf of Supplier do not constitute an offer by Supplier to supply Goods appearing in those Documents or an offer by Supplier to supply Goods at the prices set out in those Documents and for the avoidance of doubt those Documents do not form part of an Agreement except to the extent that they are expressly referred to in any Offer. Supplier’s price lists and catalogues may be changed by Supplier at any time without notice.

21 Inconsistency

21.1 Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents listed in clause 3.3, the following order of precedence will apply to the extent of the inconsistency:

• (a) the prices and quantity of Goods and/or Services set out in a Quote (if any);
• (b) these Terms;
• (c) the Account Application;
• (d) any other terms of the Quote (if applicable); and
• (e) without limiting clause 21.2, any terms in the Order which are accepted by Supplier in writing.

21.2 These Terms will prevail over any Customer terms and conditions, except to the extent specifically agreed by Supplier in writing and any terms or conditions included in an Order or other document provided or issued by the Customer will only be binding on Supplier if expressly agreed by Supplier in writing.

22 Miscellaneous

22.1 In these Terms:

• (a) the singular includes the plural and vice versa;
• (b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
• (c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
• (d) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’ or ‘such as’ or similar expressions;
• (e) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
• (f) headings are inserted for convenience and do not affect the interpretation of these Terms;
• (g) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms; and
• (h) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.

22.2 The Customer must maintain and keep current and complete records of the Goods which Supplier has supplied to the Customer (in sufficient detail so as to be readily identified as goods supplied by Supplier), including any Goods which are sold by the Customer to a third party and must, immediately upon written request from Supplier, provide Supplier with access to, or copies of, those records.
22.3 The Customer must not assign or otherwise deal with any of its rights or obligations under these Terms without Supplier’s prior written consent. Supplier may, to the extent permitted by law, assign, subcontract or deal with any of its rights or obligations under these Terms (including any right to be paid or chose in action) at any time in circumstances where the assignment will not adversely affect the rights of the Customer.
22.4 Supplier may, to the extent permitted by law, vary these Terms from time to time with the variation becoming effective as soon as Supplier provides the Customer notice of the variation (Variation Date). Any variation to these Terms will only apply to, and in respect of, any Offer made after the Variation Date and the parties acknowledge that nothing in these Terms requires the Customer to make any further Offers after the Variation Date. The Customer may, by written notice to Supplier, terminate these Terms at anytime within 30 days of receiving notice of a variation of the Terms but any such termination by the Customer will not have the effect of terminating any Agreement existing prior to the notice of termination.
22.5 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under these Terms must be in writing and is only effective to the extent set out in that written waiver.
22.6 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
22.7 The termination or expiry of these Terms or any Agreement does not operate to terminate any rights or obligations under an Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 1, 7, 8, 9, 10, 11, 12, 13, 16, 18, 21 and 22.
22.8 Each party must:

• (a) do all acts necessary or desirable to give full effect to an Agreement; and
• (b) refrain from doing anything which might prevent full effect being given to an Agreement.

22.9 The relationship between the parties is and will remain that of independent contractors, and nothing in these Terms or an Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or (except as expressly provided for) gives rise to any other form of fiduciary relationship between the parties.
22.10 Notices by a party must be delivered by hand, prepaid post or email and sent to the address of the receiving party specified in the Account Application or, if none are specified, in any other part of the Agreement. Notices will be deemed to have been received: by hand upon delivery; by post within six Business Days of sending; and by email one hour after the email is sent (unless the sender knows that email has failed to send).
22.11 These Terms and each Agreement are governed by the laws in force in New South Wales, and the Customer and Supplier submit to the non-exclusive jurisdiction of the courts of New South Wales.
22.12 The United Nations Convention on Contracts for the International Sale of Goods (1980) (The Vienna Convention) and any acts or regulations enacting The Vienna Convention will not apply to these Terms or any Agreement and are excluded.

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