This Agreement is made between Connect Services Pty Ltd ABN 78 127 417 592 and the persons described herein as the Customer and the Guarantor on the following terms and conditions.
Standard Terms and Conditions of Trade
This Agreement is made between Connect Services Pty Ltd ABN 78 127 417 592 and the persons described herein as the Customer and the Guarantor on the following terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions, unless the context otherwise requires:
(a) “Company” means Connect Services Pty Ltd ABN 78 127 417 592 and its related bodies corporate, associated entities, successors and permitted assigns.
(b) “Costs” means all costs of delivery and supply of Goods and/or Services.
(c) “Credit Account” means a credit account with the Company.
(d) “Customer” means each person described as such on the purchase order, work authorisation or any other forms provided in connection herewith, including their administrators, successors and permitted assigns.
(e) “Fees” means the fees payable for Services hereunder.
(f) “Goods” means the goods, motor vehicles, materials, chattels and things described on the invoices, quotations, work authorisation or any other forms provided in connection herewith, and includes their parts, components and accessories as well as any manuals, guidelines and other documents relating thereto.
(g) “Guarantor” means each person who signs for and on behalf of the Customer on the Application for Credit Account annexed hereto as well as each person described as such on the purchase order, work authorisation or any other forms provided in connection herewith, including their administrators, successors and permitted assigns.
(h) “Intellectual Property Rights” means circuit layout rights, copyrights, patent rights, trademark rights, design rights, get up, know-how, trade secrets and any and all other forms of intellectual property rights, wheresoever and howsoever arising, whether registered or unregistered, anywhere in the world.
(i) “PMSI” has the meaning set out under section 14 of the PPSA.
(j) “PPSA” means the Personal Property Securities Act 2009 (Cth).
(k) “PPSR” means the Personal Property Securities Register.
(l) “Price” shall mean the price payable for Goods hereunder.
(m) “Security Interest” has the meaning set out under section 12 of the PPSA.
(n) “Services” means services supplied or to be supplied hereunder and/or any other services as described on the purchase order, work authorisation or any other forms provided in connection herewith.
(o) “Terms” means Standard Terms and Conditions of Trade.
1.2 In these terms and conditions, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) a gender includes other genders;
(c) another grammatical form of a defined term has a corresponding meaning;
(d) a reference to a document includes variations or replacements thereof;
(e) a reference to a person includes an individual, body corporate or other entity;
(f) a reference to a rule or law includes subordinate, amending and replacement laws;
(g) a reference to an associated entity includes the entities so defined in Section 50AAA of the Corporations Act 2001;
(h) a reference to a related body corporate includes the bodies so defined in Section 50 of the Corporations Act 2001;
(i) headings are for ease of reference only and do not affect interpretation.
2. ACCEPTANCE OF THESE TERMS AND CONDITIONS
2.1 Each of the following acts or omissions shall constitute acceptance of these terms and conditions by the Customer:
(a) the acknowledgement of any order, quotation, request or instructions from the Company;
(b) the attendance by the Customer at any site for the supply of Goods and/or Services;
(c) the supply of any Goods and/or Services by the Customer to or for the Company;
(d) the acceptance by the Customer of any payment for supplies hereunder; and
(e) any other conduct that indicates or constitutes acceptance hereof.
Upon acceptance, these terms and conditions are legally binding on the Customer.
2.2 Where more than one Customer enters into these terms and conditions or where the Customer comprises multiple persons or entities, they shall be jointly and severally liable for the performance of all obligations of the Customer hereunder.
2.3 Where a Customer enters into these terms and conditions as a trustee of any trust, the Customer and its successors as trustee of the trust are liable under these terms and conditions in their own right and as trustee of the trust. Nothing releases the Customer from any liability in their personal capacity.
3. CREDIT ACCOUNT
3.1 The Company may at its discretion open a Credit Account for the Customer.
3.2 Only authorised representatives of the Customer are authorised to transact on the Credit Account. The Customer shall keep the Company notified of those persons at all times.
3.3 The Company may require the Customer to spend a minimum dollar amount per year to obtain the goods or services on credit (charged to the Credit Account).
3.4 The Company may from time to time at its absolute discretion specify the maximum (GST – inclusive) amount that may be charged to the Credit Account over a particular period (“Credit Limit”). The Customer’s Credit Limit is subject to review at any time by the Company. Also, the Company may, on request in writing by the Customer, agree in writing to increase or decrease the Credit Limit (including to zero).
3.5 The balance of the Credit Account at any time must not exceed the Credit Limit.
3.6 The Company may refuse to deliver or supply goods or services and may refuse to provide further credit to the Company (“Stop Credit”) if:
(a) such delivery or supply or provision of further credit will cause the Customer to exceed the Credit Limit; or
(b) any amounts payable by the Customer to the Company are not paid when due; or
(c) the Customer is in default of these terms and conditions; or
(d) the parties are in dispute about any matter or thing.
3.7 The Customer agrees to immediately pay the amounts charged to the Credit Account for any Goods or Services supplied by the Company in excess of the Credit Limit, whether or not demand for payment has been made by the Company.
3.8 The Customer is responsible for and indemnifies the Company against any unauthorised use of the Credit Account by any person other than the Company (including any employee or third party).
3.9 The Company shall in its discretion issue the Customer with periodic Credit Account Statements setting out all transactions charged and payments received in respect of the Credit Account. Statements shall be issued to the Customer at least monthly upon the end of each month.
3.10 The Customer shall pay the Company all amounts claimed as due and owing on each Credit Account Statement within 30 days of the date of the Credit Account Statement or invoice. All payments shall be in Australian Dollars (AUD).
3.11 Where the Customer defaults in its payment obligations under these terms and conditions, any amounts owed by the Customer to the Company in connection with these terms and conditions may be deducted from any fee payable by the Company to the Customer (if any) under any other contract.
3.12 The Company may at its discretion levy as an administration charge a late payment fee of $50.00 (the “Fee”) for non-payment of the Credit Account invoice where the Credit Account is more than 30 days due.
3.13 The Company shall charge and the Customer shall pay default interest at the rate prescribed under Section 58 of the Civil Proceedings Act 2011 (Qld) as amended or replaced from time to time, on any and all overdue amounts payable under clause 2.10 hereof. The Company will charge interest from the 30th day after the date of the Credit Account Statement until the unpaid amount is paid from any settlement sum or court award as applicable. The Company may invoice the Customer separately for interest and interest shall be payable upon receipt of the invoice by the Customer.
3.14 A statement or tax invoice setting out details of the amount owing and any other matters relating to the Credit Account signed by an officer of the Company is sufficient evidence of the supply of the Goods or Services by the Company to the Customer. This statement or tax invoice may be used in court proceedings.
3.15 Any complaint made by the Customer that a transaction recorded on the Customer’s tax invoice is incorrect must be advised to the Company in writing within seven (7) days of the issue of the tax invoice. If this does not occur, the transactions recorded in the tax invoice are deemed by the Customer to be correct.
3.16 If part of any amount set out in a tax invoice is in dispute, the Customer agrees to pay the undisputed amount within the time period specified in clause 3.10.
4. ORDERS, QUOTATIONS AND CONFIRMATION NOTICES
4.1 All orders, quotations and confirmation notices are made on and subject to these terms and conditions.
4.2 If a Company receives an order to supply Goods or Services, the Company will not be bound to supply the Goods or Services to the Customer, unless the Company has accepted the order, quotation or confirmation notice, by either carrying out the order or by formal acceptance in writing to the Customer.
4.3 The Company may notify the Customer if any order, quotation or confirmation notice contains any deficiency or ambiguity or if the Company no longer supplies the Goods or Services described in the order, quotation or confirmation notice.
4.4 The Customer is prohibited from cancelling or varying any order, quotation or confirmation notice, once submitted to the Company, except by agreement with the Company.
4.5 The Customer will be bound to pay for the Goods or Services pursuant to the order, quotation or confirmation notice and pursuant to these terms and conditions.
4.6 If for any reason, the Company is not able to supply the Goods or Services to the Customer, the Company will not be bound to supply the Goods or Services.
4.7 The Company at its absolute discretion, may at any time cancel an order prior to delivery and in the absence of any default by the Customer, if an order is cancelled, then the Company shall refund to the Customer any monies paid by the Customer, and the Company will not be liable for any loss or damage incurred by the Customer for doing so.
5. SUPPLY OF GOODS
5.1 This clause 5 applies if the Company supplies Goods to the Customer pursuant to these terms and conditions.
5.2 The Company shall use reasonable endeavours to supply and deliver all Goods by the dates and times specified in any order, request or instruction given by the Company or in any quotation, work schedule or other document accepted in writing by the Company to the Customer upon payment of the Price by the Customer to the Company.
5.3 There shall be no material variation or change to the Goods without the Customer’s consent (which consent must include agreement in relation to the Price and Costs payable in respect of such variation or change).
5.4 Nothing herein binds the Company to supply the Customer with the exact quantity of any Good specified in an order or confirmation notice and, provided the Company redresses any valid claim hereunder for short supply, the Company shall not otherwise be liable to the Customer for any short or over supply of Goods.
5.5 The Company has the right to add/delete a Good as well as change the specifications for a Good at any time subject to giving the Customer prior notice of the same.
5.6 All Prices for Goods shall, unless stated otherwise in the order or quotation, include all Costs and GST.
5.7 Delivery of the Goods shall take place when possession of the Goods passes to the Customer.
5.8 Risk in the Goods passes from the Company to the Customer upon delivery regardless as to when payment for the Goods occurs. The Company is responsible for all risk in the Goods up to the point of delivery.
5.9 Title in the Goods does not pass from the Company to the Customer until the Customer has paid all amounts owing to the Company for the Goods as specified on the order, quotation or confirmation notice.
6. SUPPLY OF SERVICES
6.1 This clause 6 applies if the Company supplies Services to the Customer under these terms and conditions.
6.2 The Company shall use reasonable endeavours to supply all Services by the dates and times specified in any order, request or instruction given or in any quotation, work schedule or other document accepted in writing by the Company. The Company must endeavour to act diligently and with all due care and skill when supplying the Services.
6.3 There shall be no variation or change to the Services without the Customer’s consent (which consent must include agreement in relation to the Fees and Costs payable in respect of such variation or change).
6.4 All Fees shall, unless stated otherwise in the order or quotation, include all Costs and GST.
7. WARRANTIES ON GOODS AND SERVICES
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
7.1 The Company warrants each Good supplied hereunder in accordance with (and only to the extent of) the warranty documentation enclosed with or attached to the Good or otherwise supplied to the Customer in connection with the delivery of the Good hereunder, subject always to law.
7.2 The Company warrants that the Services shall be supplied in a proper and workmanlike manner in accordance with all applicable laws and regulations, quality standards and industry protocols.
7.3 Subject to the conditions of warranty below, if Goods or Services are defective, the Company’s liability is limited to:
(a) in respect of Goods – either (at the Company’s discretion) replacing the Goods or repairing the Goods , or arranging for a third party to replace or repair the Goods, or issuing a credit note for the Price of the Goods, except where the Customer has acquired Goods as a consumer in which case the Company shall refund the Price if the Customer requests; and
(b) in respect of Services – resupplying the Services, or arranging for a third party to resupply the Services, or issuing a credit note for the Fees for the Services, except where the Customer has acquired Services as a consumer in which case the Company shall refund the Fees if the Customer requests.
7.4 Notwithstanding the foregoing, this warranty does not cover defects caused wholly or partly by use contrary to the specifications or any manual or instruction guide for the Goods, accidents, fire, lightning, hurricane, tornado, cyclone, windstorm, earthquake or other acts of God, harmful chemicals (including harmful cleaning compounds), fumes or vapours, surface deterioration due to air pollution, acid rain or other environmental pollution, misuse or abuse, vandalism, airborne stains, mould and mildew accumulation, failure to provide proper maintenance as per the specifications for the Goods, impact of foreign objects, warping or distortion due to exposure to excessive heat sources or exposure to excessive reflective heat sources, or any other causes beyond the Company’s reasonable control.
7.5 Each warranty provided herein is granted subject to the following conditions:
(a) the Customer must serve a warranty claim upon the Company within the applicable warranty period and if no period is specified then within 12 months of the date of purchase;
(b) the Customer must make available for inspection by the alleged defect in Goods or Services within a reasonable time after the warranty claim is made;
(c) the Customer is responsible for all costs associated with return of Goods to the Company for repair or replacement;
(d) the Customer must pay any travel expenses incurred by the Company in connection with any inspection of the Goods outside of Brisbane metropolitan areas;
(e) the Customer must show proof of purchase of the Goods or Services to the Company at or prior to the inspection of any alleged defect;
(f) the Company reserves the sole right to determine whether any actual or alleged defects are covered by the warranty;
(g) any tampering of Goods or Services undertaken without the authorisation or permission of the Company shall void the warranty provided herein;
(h) the warranties provided hereunder are not transferrable or assignable; and
(i) Goods must not have had any of their serial numbers, bar codes or other identification marks removed and must not have been tampered with in anyway shape or form.
7.6 The Customer shall inspect Goods and Services supplied upon delivery and shall within seven (7) days of completion of the delivery (time being of the essence) notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with any description or quote.
7.7 The Customer shall allow the Company to inspect Goods or Services supplied within a reasonable time after delivery if the Customer alleges they are defective in any way.
7.8 Nothing in this warranty affects any implied conditions, warranties, rights or other entitlements under the Australian Consumer Law or any other legislation which cannot be excluded or limited by agreement. All other warranties are expressly excluded.
7.9 Where this warranty does not apply, it is the sole responsibility of the Customer to meet any costs of repair or replacement of the defective Goods or Services.
8. INVOICING AND PAYMENT
8.1 Subject to and conditional upon compliance with these terms and conditions by the Customer:
(a) if clause 4 applies – the Company shall be paid the Price, Costs and GST agreed for the Goods; and
(b) if clause 5applies – the Company shall be paid the Fees, Costs and GST for the Services.
8.2 The Company shall render an invoice to the Customer at the times specified in the order or quotation, or if no time is specified then when or after the supply is made or otherwise at the Company’s discretion.
8.3 Invoices shall be paid by the Customer upon receipt, unless the Customer has a Credit Account with the Company, in which case the terms of payment shall be as specified in clause 3 hereof.
8.4 All payments are to be made in Australian dollars unless otherwise agreed in writing by the Company.
8.5 The Company may levy a surcharge for credit card payments or default interest on any invoice.
8.6 The Company shall be entitled to set off against any invoice any amount that is owed to the Company by the Customer.
9. GENERAL OBLIGATIONS OF CUSTOMER
9.1 The Customer’s obligations under these terms and conditions may only be performed by the Customer.
9.2 The Customer may not subcontract any of its obligations under these terms and conditions without the Company’s written consent.
9.3 The Customer acknowledges and accepts the Company hereunder has the necessary qualifications, expertise, skill and integrity to do and in comply with all applicable laws and standards.
9.4 The Customer must not, without the Company’s prior written consent, hold itself out to be an officer, employee, agent, partner or representative of the Company, and must not do anything that may bind the Company to any obligation or representation.
9.5 The Customer must not use any trading name, logo, trade mark or design of the Company in its marketing or administrative documents and materials without the prior written fully informed consent of the Company.
9.6 The Customer must comply with all reasonable directions and notices issued by the Company to the Customer.
9.7 The Customer must comply with all applicable laws and regulations and not do (or omit to do) anything whereby the Company or any person could be rendered liable to any claims, legal proceedings, prosecutions or government intervention.
9.8 The Customer must not engage in misleading, deceptive or negligent conduct or practices.
9.9 The Customer must at all times act in an ethical, honest and proper manner.
9.10 The Customer must disclose all relevant conflicts of duty and/or interest to the Company as soon as they arise.
9.11 The Customer must not to do anything which will or might reasonably be expected to defame or injure or in any way adversely affect the goodwill and reputation of the Company.
10. DEFAULT AND TERMINATION
10.1 The Company may at its option, and in the manner and at the time the Company in its absolute discretion determines, terminate these terms and conditions and/or cancel any order, request, instruction or arrangement to which they relate, if:
(a) the Customer breaches these terms and conditions or such a breach is reasonably anticipated;
(b) the Customer becomes insolvent as defined in Regulation 7.5.02 of the Corporations Act 2011 (Cth) or commits an act of bankruptcy, indicates that it does not have the resources to fulfil its obligations hereunder, or is subject to any similar event, or any such events are reasonably anticipated;
(c) the Customer sells or agrees to sell its business or suffers a change in the control by its officers or shareholders.
10.2 The Company may at its option terminate these terms and conditions without cause and without giving any reason by serving written notice of termination upon the Customer.
10.3 The Company shall be entitled to payment of the entire outstanding balance of the Credit Account including all interest and charges , as well as payment for all other supplies made hereunder on or prior to the date of termination but not thereafter, provided that in relation to Goods for which partial payment has been made at the date of termination, the Company may require the Customer to collect the Goods and shall be entitled to deduct an administration fee equal to 10% of the Price or $200, whichever is the lesser, from any refund of partial payments made.
10.4 No termination fee or any compensation is payable to the Customer if the Company terminates these terms and conditions.
10.5 The Company reserves the right to suspend or postpone amounts that are due and payable to the Customer after termination of these terms and conditions at the Company’ discretion if the Company reasonably anticipates being entitled to deduct or set-off any money owing to it by the Customer from those amounts under the terms hereof.
10.6 The termination of these terms and conditions by either party is without prejudice to any other right or remedy which they may have against the other party at law or in equity or under these terms and conditions.
10.7 In the event of any proven default by the Customer in payment of any invoice when due to the Company, then in addition to seeking recovery of the debt due, the Customer shall be liable to the Company for the costs and disbursements (including legal costs on a solicitor and own Customer basis and collection agency costs) incurred by the Company in pursuing the debt, as well as default interest from the date of default until the date of payment at the rate prescribed for Part 8 of Civil Proceedings Act 2011 (Qld)..
10.8 Without prejudice to any other remedies the Company may have at law, if at any time the Customer is in default of any obligation contained under these terms of sale, the Company shall have the right to enforce all of its rights under the PPSA, which includes but is not limited to, the right to seize and take possession of the Vehicle.
11.1 The Customer fully indemnifies the Company from and against, and must keep the Company fully indemnified from and against, all expenses, loss, damage, claims, costs and other liabilities (including legal costs on a solicitor and own Customer basis) arising from any act or omission of the Customer (or any of its officers, agents, employees and other representatives) in:
(a) any default under, or failure to perform, these terms and conditions;
(b) any death or injury to a person, and any loss or damage to real or personal property, caused by the Customer; and
(c) any infringement of any Intellectual Property Rights of any person by the Customer.
11.2 Each amount payable under the aforementioned indemnity is a debt due and payable to the Company on the Company’s demand. The Customer agrees to pay or credit the amount to the Company, at the Company’s option, immediately after issue of the demand by the Company.
11.3 Any amount claimed by the Company pursuant to the indemnity will be proportionately reduced to the extent any loss or damage can be established to have been caused by the Company’s negligence.
12. SECURITY FOR PAYMENT
12.1 General Lien. The Company has and is hereby granted a general lien over and all property of the Customer bailed or transferred to or otherwise held by the Company as security for payment of any and all amounts due and owing by the Customer to the Company under these terms and conditions.
12.2 Charge. The Customer hereby charges in favour of the Company all of its present and after acquired real and personal property of every kind (including without limitation real property, chattels, inventory and stock, plant and equipment, motor vehicles, debtor books of account, choses in action, cash, intellectual property rights and other assets) as security for payment of any and all amounts due and owing by the Customer to the Company under these terms and conditions.
12.3 Deposit Bond / Bank Guarantee:
(a) The Company may require the Customer to pay a deposit bond or bank guarantee to the Company as security for payment of any and all amounts due and owing by the Customer to the Company under these terms and conditions.
(b) The value of the deposit bond or bank guarantee shall be such amount as the Company shall determine in its absolute discretion provided however the amount shall not exceed any maximum value prescribed by law.
(c) The Company may draw upon the deposit bond or bank guarantee at the Company’s discretion for the purpose of making up and discharging any unpaid or outstanding amounts owing by the Customer under these terms and conditions.
(d) The Company may require the Customer to top up or replace any deposit bond or bank guarantee hereunder in the event of any drawing hereunder.
(e) If the Customer fails to do so within 7 days of such demand, the said failure shall constitute a material default under these terms and conditions entitling the Company to terminate and pursue the Customer for its loss and damage.
12.4 Personal Guarantee
(a) The Guarantor unconditionally guarantees to the Company the due and punctual performance by the Customer of the terms covenants and obligations on the part of the Customer under these terms and conditions.
(b) The Guarantor shall indemnify the Company, and keep the Company indemnified, from and against any and all claims, demands, actions, proceedings, losses, damages and costs that the Company incurs or may incur as a result of any breach by the Customer of these terms and conditions.
(c) The Guarantor’s liability under the aforesaid guarantee and indemnity is unlimited and the Guarantor’s obligations continue notwithstanding: (i) any agreement or arrangement between the Company and the Customer; (ii) any alteration or replacement of these terms and conditions; (iii) the granting of any indulgence or forbearance to the Customer by the Company; (iv) the appointment of an official manager, administrator, receiver, receiver and manager, liquidator or provisional liquidator of the Customer; or (v) any order or statutory provision having the effect of restricting or deferring claims against the Customer by its creditors.
(d) The Guarantor is liable to the Company hereunder notwithstanding that the Company may at any time obtain a judgment against the Customer in connection herewith.
12.5 Purchase money security interest
(a) The Customer and/or the Guarantor grant a purchase money security interest over all Goods it has or they have acquired from the Company to secure payment of the Goods and Credit Account in accordance with these terms and conditions and the provisions of the PPSA, and the Company agrees to take a purchase money security interest over the Goods so supplied hereunder.
(b) The Customer acknowledges and agrees that a purchase money security interest is granted priority to all other credits of the Customer in relation to the Goods supplied hereunder.
12.6 Personal Property Securities Register
(a) The Customer acknowledges and agrees that the Company may apply to register a Security interest in the Goods supplied at any time before or after delivery of the Goods. The Customer waives its right under s. 157 PPSA to receive notice of any verification of registration.
(b) If the Customer defaults in the performance of any obligation owed to the Company under these Terms, the Company may enforce its security interest in any Goods by exercising all or any of its rights under these Terms or the PPSA. To the maximum extent permitted by law, the Company and the Customer agree that the following provisions do not apply to the enforcement by the Company of its security interest in the Goods: sections 95, 118, 121(4), 125, 130, 132(3)(d), 135, 142 and 143.
(c) The Customer and the Guarantor shall do all such things necessary to perfect the security interests granted under these terms and conditions.
(d) The Company may register its security interests under these terms and conditions in the Personal Property Security Registry (PPSR).
(e) The security interests of the Company hereunder have priority over all other creditors of the Customer and the Guarantor in relation to the Goods, Services and Credit Account
(f) The Customer and the Guarantor authorise under section 275(7)(c) of the PPSA, the disclosure of information by a secured party under section 275(4) of the PPSA in response to any request for information from an interested person pursuant to sections 275(1) to (3) of the PPSA.
(g) The Customer and the Guarantor will not without written notice to the Company, change their name or initiate any change to any documentation registered under the PPSA in relation to these terms and conditions.
(h) The Company undertakes to maintain the accuracy of the registered security interest and may remove the registration when the Customer and Guarantor have paid all amounts owed to the Company in relation to the Goods, Services and Credit Account.
12.7 Credit checking
(a) The Company may obtain from a credit reporting agency a credit report about the Customer and/or Guarantor.
(b) The Company may exchange information about the Customer and the Guarantor with credit reporting agencies, credit providers and trade referees to assess the Customer’s credit worthiness and to notify third parties of any defaults hereunder.
(c) The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit under section18K(1)(h) of the Privacy Act.
(d) The Customer agrees that personal credit information provided may be used and retained by the Company to provide products, market the Company’s products and services, process payments hereunder and operate the Credit Account.
13. LIMITATION OF LIABILITY
13.1 The Company shall be under no liability whatsoever to the Customer for any indirect, special or consequential loss, damage or expense (including loss of profit, loss of revenue, loss of opportunity or other economic loss) suffered by the Customer arising out of any act or omission of the Company or any breach by the Company of these terms and conditions.
13.2 Further, in the event of any breach hereof by the Company, the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the amount equal to the aggregate of the Prices and Fees for Goods and Services supplied hereunder during the 12 months preceding the date of the breach.
14. FORCE MAJEURE
14.1 In the event of fire, sea accident, failure of machinery, or other accident, ice hindrance, flood, water shortage, or other natural disaster, vehicle or tonnage shortage or other traffic disturbance, strike, lockout, blockade, riot, revolution, mobilization or state of war, currency problems, import restrictions, or other government actions, or circumstances within or outside Australia of any kind out of the Company’s reasonable control WHICH hinders, frustrates, complicates or otherwise significantly interrupts or interferes with the Company’s ability to supply Goods or Services hereunder (regardless if these circumstances are currently existing or not), THEN the Company shall be entitled at its option to, without liability for damages, either delay and prolong the supply time while the occurring circumstance remains, or annul this entire agreement or parts of it, or withdraw the offer if an agreement is not yet reached and to raise the price with an amount corresponding to the cost inflicted on the Company by the occurred circumstance. The Customer is however not bound to accept Goods or Services for which the Company demands such a raised price.
14.2 A Force Majeure event does not relieve the Customer from any obligation to pay for any Goods or Services already delivered or supplied or to accept delivery or supply of Services capable of delivery or supply by the Company despite the Force Majeure event.
15. GENERAL WARRANTIES
15.1 The Customer represents, warrants and covenants to the Company that at the date of acceptance of these terms and conditions by the Customer and at all times until these terms and conditions are fully performed and completed:
(a) the Customer is not bankrupt and is not insolvent or in receivership or under administration, official management or liquidation and has not entered into an arrangement with its creditors;
(b) the Customer is able to carry on its business and perform its obligations under these terms and conditions;
(c) the Customer is adequately insured with a reputable insurer against all risks which a prudent person carrying on its business would insure against;
(d) there are no legal proceedings, actions, prosecutions or investigations threatened, pending or commenced against the Customer or the directors or shareholders of the Customer ;
(e) all corporate authorisations and approvals necessary to enable it to enter into these terms and conditions have been obtained and remain in full force and effect;
(f) all governmental requirements, authorisations, approvals and licenses which are necessary for the Customer to legally carry on its business are in full force and effect; and
(g) it has not withheld from the Company any document, information or other fact material to the decision of the Company to enter into these terms and conditions or to supply Goods or provide credit to the Customer .
15.2 The Customer must immediately notify the Company if any of the aforementioned representations, warranties and covenants cease to be true and correct.
16.1 These terms and conditions shall prevail over any terms and conditions of supply previously or subsequently entered into between the parties in respect of the subject matter hereof.
16.2 Nothing in these terms and conditions shall render or constitute either party a partner, employee or agent of the other party or a trustee of property for the benefit of the other party. The parties contract independently from one another.
16.3 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland. All legal proceedings shall be instituted and held in Brisbane in the State of Queensland, Australia.
16.4 Nothing in these terms and conditions is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the states and territories of Australia, except to the extent permitted by those Acts where applicable.
16.5 The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent. The Company may also at its sole discretion transfer or assign all or any part of its rights and obligations hereunder to any third party without the Customer’s consent.
16.6 The Customer shall not transfer or assign or licence or sub-contract any part of its rights and obligations hereunder without first obtaining the prior written consent of the Company.
16.7 The Company may amend or vary these terms and conditions by serving written notice on the Customer. The Customer may not change or amended these terms and conditions without the Company’ prior written agreement.
16.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
16.9 Personal information about a party may be used and retained by the other party for the provision of Goods, the marketing of Goods, credit checking, maintenance of the Customer’s account with the Company, processing any payment instructions or direct debit or credit facility, and debt collection, as well as for any other purposes as may be agreed between the parties or required by law from time to time.
16.10The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.
16.11Any party signing or executing or otherwise accepting these terms and conditions on behalf of the Customer as the Customer ’s director, officer, attorney or representative hereby warrants, states and represents in his or her personal capacity that he or she is duly authorised and permitted to do so by the Customer and by law.
16.12If any clause hereof is unenforceable and capable of severance, it shall be severed leaving the other provisions binding.
16.13Subject to any written agreement to amend the terms hereof, these terms and conditions constitute the sole and entire agreement between the parties with respect to its subject matter. No warranties, representations, guarantees or other terms or conditions of any kind not contained and recorded in these terms and conditions are of any force or effect.