As of June 15th, 2023

1. Definitions

1.1 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.2 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.3 “Cookies” means small files which are stored on a user’s computer.  They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using the Manufacturer’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.4 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Manufacturer to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and

(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and

(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and

(d) includes the Customer’s executors, administrators, successors and permitted assigns.

1.5 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

1.6 “Intended Use” means a product and the use thereof, for which the building product is intended to be, or is reasonably likely to be, associated with a building.

1.7 “Manufacturer” means McKinna Sheetmetal Pty Ltd T/A McKinna Group, its successors and assigns or any person acting on behalf of and with the authority of McKinna Sheetmetal Pty Ltd T/A McKinna Group.

1.8 “Non-Conforming Product” means products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:

(a) the product is not, or will not be, safe; or

(b) does not, or will not, comply with the relevant regulatory provisions; or

(c) the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.

1.9 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Manufacturer and the Customer in accordance with clause 6 below.

1.10 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Manufacturer to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.11 “Worksite” means the address nominated by the Customer to which the Materials are to be supplied by the Manufacturer.

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 The Customer acknowledges and accepts that:

(a) the supply of Materials:

(i) on credit shall not take effect until the Customer has completed a credit application with the Manufacturer and it has been approved with a credit limit established for the account. In the event that the supply of Materials requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Manufacturer reserves the right to refuse delivery; and

(ii) for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, the Manufacturer reserves the right to vary the Price with alternative Materials as per clause 5.2, subject to prior confirmation and agreement by both parties.

(b) once the Customer has approved the drawings (including all artwork and associated material), the Manufacturer shall not be liable for any errors and/or omissions in the Materials or Works and additional charges may apply for any additional alterations to the Materials or Works, or for the resupply of the Materials, after the Customer has provided the signed off drawings;

(c) the lead time shall commence only after a final measure and upon receipt of this signed Contract; and

(i) the Customer has provided to the Manufacturer with any and all documents, permits, approvals and any other information required by the Manufacturer;

(ii) the Customer has provided to the Manufacturer the security (if any) requested by the Manufacturer;

(iii) the Manufacturer has received from the Customer cleared funds of any deposit or advanced payment(s) that the Manufacturer has required; and

(iv) the Manufacturer has accepted the Customer’s order.

(d) any variation to the Materials received outside the stipulated timeframe provided on the quotation will be charged for in accordance with clause 6.2.

2.5 Any advice, recommendation, information, assistance, or service provided by the Manufacturer in relation to the Materials or Works supplied is given in good faith to the Customer, or the Customer’s agent and is based on the Manufacturer’s own knowledge and experience and shall be accepted without liability on the part of the Manufacturer. Where such advice or recommendations are not acted upon then the Manufacturer shall require the Customer or their agent to authorise commencement of the Works in writing. The Manufacturer shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Authorised Representatives

3.1 Unless otherwise limited as per clause 3.2 the Customer agrees that should the Customer introduce any third party to the Manufacturer as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Materials, or Works on the Customer’s behalf and/or to request any variation to the Works on the Customer’s behalf (such authority to continue until all requested Works have been completed or the Customer otherwise notifies the Manufacturer in writing that said person is no longer the Customer’s duly authorised representative).

3.2 In the event that the Customer’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise the Manufacturer in writing of the parameters of the limited authority granted to their representative.

3.3 The Customer specifically acknowledges and accepts that they will be solely liable to the Manufacturer for all additional costs incurred by the Manufacturer (including the Manufacturer’s profit margin) in providing any Materials or Works or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

4. Errors and Omissions

4.1 The Customer acknowledges and accepts that the Manufacturer shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by the Manufacturer in the formation and/or administration of this Contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Manufacturer in respect of the Works.

4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of the Manufacturer; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

4.3 In circumstances where the Customer is required to place an order for Materials, in writing, or otherwise as permitted by these terms and conditions, the Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Materials (whether they are made to order Materials or not) (“Customer Error“). The Customer must pay for all Materials it orders from the Manufacturer notwithstanding that such Materials suffer from a Customer Error and notwithstanding that the Customer has not taken or refuses to take delivery of such Materials. The Manufacturer is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Customers Errors.

5. Change in Control

5.1 The Customer shall give the Manufacturer not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by the Manufacturer as a result of the Customer’s failure to comply with this clause.

6. Price and Payment

6.1 At the Manufacturer’s sole discretion, the Price shall be either:

(a) as indicated on invoices provided by the Manufacturer to the Customer in respect of Works performed or Materials supplied; or

(b) the Price as at the date of delivery of the Works according to the Manufacturer’s current price list; or

(c) the Manufacturer’s estimated Price (subject to clause 6.2) which shall not be deemed binding upon the Manufacturer as the actual Price can only be determined upon completion of the Works. The Manufacturer undertakes to keep the Customer informed should the actual Price look likely to exceed the original estimate; or

(d) the Manufacturer’s quoted Price (subject to clause 6.2) which shall be binding upon the Manufacturer provided that the Customer shall accept the Manufacturer’s quotation in writing within thirty (30) days.

6.2 The Manufacturer reserves the right to change the Price:

(a) if a variation to the Materials which are to be supplied is requested; or

(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, obscured building/Worksite defects, incorrect measurements, plans and/or specifications provided by the Customer, as a result of delays from third party suppliers, work required for pre-existing conditions that are not apparent on a visual inspection, work outside normal business hours, safety considerations, availability of machinery, change of design, unforeseen welding and structural repairs, warping of Materials, scorching during welding, misalignment during cutting, prerequisite work by any third party not being completed, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, ) which are only discovered on commencement of the Works; or

(d) in the event of increases to the Manufacturer in the cost of labour or Materials (including, but not limited to, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange, taxes, levies and/or freight and insurance charges) which are beyond the Manufacturer’s

6.3 Variations will be charged for on the basis of the Manufacturer’s quotation, and will be detailed in writing, and shown as variations on the Manufacturer’s invoice. The Customer shall be required to respond to any variation submitted by the Manufacturer within ten (10) working days. Failure to do so will entitle the Manufacturer to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.4 At the Manufacturer’s sole discretion, a non-refundable deposit may be required.

6.5 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Manufacturer, which may be:

(a) on completion of the Works; or

(b) by way of progress payments in accordance with the Manufacturer’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed; or

(c) for approved credit account holders thirty (30) days following the date of any invoice; or

(d) the date specified on any invoice or other form as being the date for payment; or

(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Manufacturer.

6.6 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Manufacturer.

6.7 The Manufacturer may in its discretion allocate any payment received from the Customer towards any invoice that the Manufacturer determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Manufacturer may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Manufacturer, payment will be deemed to be allocated in such manner as preserves the maximum value of the Manufacturer’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.

6.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Manufacturer nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Customer must notify the Manufacturer in writing within seven (7) business days, the invoice shall remain due and payable for the full amount, until such time as the Manufacturer investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Manufacturer placing the Customer’s account into default and subject to default interest in accordance with clause 22.1.

6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Manufacturer an amount equal to any GST the Manufacturer must pay for any supply by the Manufacturer under this or any other Contract for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

7. Provision of the Works

7.1 Subject to clause 7.2 it is the Manufacturer’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Manufacturer claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Manufacturer’s control, including but not limited to any failure by the Customer to:

(a) make a selection; or

(b) have the Worksite ready for the Works; or

(c) notify the Manufacturer that the Worksite is ready.

7.3 At the Manufacturer’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

7.4 The Manufacturer may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

7.5 Any time specified by the Manufacturer for delivery of the Works is an estimate only and the Manufacturer will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Manufacturer is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then the Manufacturer shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

8. Risk

8.1 If the Manufacturer retains ownership of the Materials under clause 16 then:

(a) where the Manufacturer is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:

(i) the Customer or the Customer’s nominated carrier takes possession of the Materials at the Manufacturer’s address; or

(ii) the Materials are delivered by the Manufacturer or the Manufacturer’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).

(b) where the Manufacturer is to both supply and install Materials then the Manufacturer shall maintain a Contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.

8.2 Notwithstanding the provisions of clause 8.1 if the Customer specifically requests the Manufacturer to leave Materials outside the Manufacturer’s premises for collection or to deliver the Materials to an unattended location then such Materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.

8.3 Where the Manufacturer is required to install the Materials the Customer warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Manufacturer shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.

8.4 The Manufacturer shall not be liable for any defect or damage resulting from incorrect or faulty installation of the Materials by any third party.

8.5 The Customer acknowledges that the Manufacturer is only responsible for parts that are replaced/supplied by the Manufacturer and does not at any stage accept any liability in respect of components supplied by any other third party that subsequently fail and are found to be the source of the failure, the Customer agrees to indemnify the Manufacturer against any loss or damage to the Materials, or caused thereby, or any part thereof howsoever arising.

8.6 The Customer acknowledges that Materials supplied may:

(a) exhibit variations in shade tone, colour, texture, surface and finish, and may fade or change colour over time. The Manufacturer will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur;

(b) fade or change colour over time;

(c) expand, contract or distort as a result of exposure to heat, cold, weather;

(d) mark or stain if exposed to certain substances; and

(e) be damaged or disfigured by impact or scratching.

8.7 Stainless steel is a textured material and can be of a porous nature. The Customer accepts that products made from this material can rust and mark easily. The Customer accepts that care should be taken to maintain the finish of and longevity of stainless-steel products.

8.8 where an anodised surface finish has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in aluminium alloys available and manufacturing standards and tolerances shall not deemed to be a defect in the Materials.

8.9 The Customer acknowledges and agrees that routine cleaning will prolong the original appearance of the stainless steel and provides maximum corrosion resistance when it is cleaned regularly. The Customer further agrees that crevice corrosion (tea staining) may occur if dirt, grime and surface stains containing corrosive substances are left on the stainless steel surface including the use of products near coastlines and windy areas. The frequency of cleaning required will depend on aesthetic requirements, severity of the environment, suitability of the stainless steel grade and surface finish for that particular environment, the presence or lack of heavy rains to clean the surface, and the design of the stainless steel

8.10 The Customer acknowledges and agrees that where the Manufacturer have performed temporary repairs or welding of joins or metal tears, that the Manufacturer:

(a) offers no guarantee against the reoccurrence of the initial fault, or any further damage caused;

(b) will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair; and

(c) shall not be held liable for any losses or damages resulting from the remedial welding put under excessive or inappropriate strain.

9. Maintenance of Power Coated Aluminium

9.1 The Customer acknowledges and accepts that the Manufacturer recommends:

(a) cleaning, care, and maintenance is essential to preserve the fine finish of powder coat;

(b) the frequency of cleaning will vary depending on contamination and grime from the environment such as moisture, salt, sulphurs, dirt and other compounds that can deteriorate the coating and the contaminated surface deposits embedded into the coating over time causes more permanent damage which cannot be restored;

(c) powder coated goods must be maintained in accordance with the powder manufacturer’s data sheets and/or tech sheets;

(d) areas where salts, pollutants and high corrosivity levels are prevalent should undergo more frequent cleaning schedules;

(e) at the very minimum, cleaning should be done at three (3) to six (6) month intervals (depending on location i.e., seaside, inland, rural, or industrial etc,) and is often part of the regular cleaning program associated with items such as the glazing or balustrades of the property;

(f) not to use solvents or abrasive type cleaning products or agents under any circumstances as this will severely damage the surface of the material; and

(g) not to rub surfaces excessively.

10. Dimensions, Plans and Specifications

10.1 All customary building tolerances shall apply to the dimensions and measurements (including measurements based on site conditions) and the Manufacturer shall not be liable of any subsequent changes to framing and/or the building structures and any such costs to changes shall be borne by the Customer unless the Manufacturer and the Customer agree otherwise in writing.

10.2 In the event the Customer gives information relating to the Materials (including plans, specifications, CAD drawings, measurements, quantities, and other information provided by the Customer):

(a) that it is the Customer’s responsibility to verify the accuracy of the information before the Customer or the Manufacturer places an order based on the information. The Manufacturer accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause; and

(b) the Manufacturer shall be entitled to rely on the accuracy of such information. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Manufacturer accepts no responsibility for any loss, damages, or costs however resulting therefrom, including any variation to the Materials required due to inaccurate plans provided by the Customer, such additional Works shall be charged in accordance with clause 6.2.

10.3 If the giving of an estimate or quotation for the supply of Materials involves the Manufacturer estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of the Manufacturer estimated measurements and quantities before the Customer places an order based on such estimate or accepts such quotation.

10.4 Should the Customer require any changes to the Manufacturer estimated measurements and quantities, the Customer shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.

10.5 The Customer acknowledges that:

(a) all descriptive specifications, illustrations, drawings, data, dimensions, and weights stated in the Manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by the Manufacturer; and

(b) while the Manufacturer may have provided information or figures to the Customer regarding the performance of the Materials, the Customer acknowledges that the Manufacturer has given these in good faith and are estimates.

10.6 The Manufacturer reserves the right to substitute comparable Materials (or components of the Materials), and in all such cases the Manufacturer will notify the Customer in advance of any such substitution.

11. Materials and Tolerances

11.1 Tolerances to be achieved should be as per general tolerances below:

(a) shear and forming general tolerances:

(i) fold to fold and fold to edge distances ± 1mm

(ii) overall length ± 3mm up to 6200mm

(iii) angular ± 1°

(iv) out of straightness ± 2mm per 1000mm

(v) flatness deviation ± 3mm

(b) fabrication general tolerances:

(i) fold to fold and fold to edge distances ± 1mm

(ii) fabricated dimensions ± 1mm per 1000mm

(iii) angular ± 1°

(iv) out of straightness ± 2mm per 1000mm

(v) flatness deviation ± 4mm per 1000mm

(vi) general arrangement ± 2%.

11.2 Chemical compositions, mechanical properties, tempers and other characteristics, certifications, products certifications, data sheets and/or test certificate requests must be made expressly in writing to the Manufacturer prior to the purchase order generation by the Customer or at the quotation stage.

11.3 The Customer acknowledges that there are variations in chemical compositions, mechanical properties, tempers, and other characteristics between batches. The Manufacturer shall not be liable for any loss, damages or costs howsoever arising resulting from any variation between batches and the final product supplied.

11.4 Finishes and coatings may vary depending on batch from manufacturers and the Manufacturer strongly recommends that Materials required are processed in one batch and installed in one sequence and direction to minimise finish and coating variations.

11.5 Access to warranty finishes and coatings must be requested prior to order and acceptance due to factors and applications which must be approved prior by the suppliers.

12. Worksite Access and Condition

12.1 The Customer shall ensure that the Manufacturer has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). The Manufacturer shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Manufacturer; and

12.2 It is the Customer’s responsibility to:

(a) provide the Manufacturer, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities; and

(b) ensure that the work area and surrounds are protected and free from hazards (including but not limited to flammable materials), fume extracted and ventilated. The Manufacturer accepts no liability whatsoever in this respect.

12.3 Where isolation and/or disconnection of overhead powerlines (or shrouding) are required to facilitate the supply of Materials and/or Works under this Contract, this shall be the sole responsibility of the Customer.

12.4 The Customer acknowledges and accepts that they shall remove any tangible items susceptible to damage from the vicinity of the Works (and provide protection where necessary) and agrees that the Manufacturer shall not be liable for any damage caused to those items through the Customers failure to comply with this clause.

12.5 Worksite Inductions

(a) in the event the Customer requires an employee or sub-contractor of the Manufacturer to undertake a Worksite induction during working hours, the Customer will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Customer shall be liable to pay the Manufacturer’s standard (and/or overtime, if applicable) hourly labour rate; or

(b) where the Manufacturer is in control of the Worksite, the Customer and/or the Customer’s third-party contractors must initially carry out the Manufacturer’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Customer and/or third party acting on behalf of the Customer must at all times be accompanied by the Manufacturer.

13. Underground Locations

13.1 Prior to the Manufacturer commencing any work the Customer must advise the Manufacturer of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.

13.2 Whilst the Manufacturer will take all care to avoid damage to any underground services the Customer agrees to indemnify the Manufacturer in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 13.1.

14. Compliance with Laws

14.1 The Customer and the Manufacturer shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any occupational health and safety laws (OHS) relating or any other relevant safety standards or legislation pertaining to the Works.

14.2 Both parties acknowledge and agree:

(a) to comply with the National Construction Code of Australia (NCC) and the Building Act 1993, in respect of all workmanship and building products to be supplied during the course of the Works; and

(b) that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.

14.3 Where the Customer has supplied products for the Manufacturer to complete the Works, the Customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in the Manufacturer’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with state and/or territory regulations, then the Manufacturer shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.

14.4 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.

15. Modern Slavery

15.1 For the purposes of this clause:

(a) “Act” means the Modern Slavery Act 2018 (cth)

(b) “Modern Slavery”, “Modern Slavery Statement” and “Reporting Entity” have the meanings given by the Act.

15.2 If the Customer is a Reporting Entity, it shall comply with all of its obligations under the Act.

15.3 Whether the Customer is a Reporting Entity or not, the Customer shall:

(a) use reasonable endeavours to identify, assess and address risks of Modern Slavery practices in its operations and supply chains;

(b) use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes of the Contract have undertaken suitable training to identify and report Modern Slavery;

(c) use its reasonable endeavours to ensure that if at any time the Customer becomes aware of Modern Slavery practices in its operations and supply chains, the Customer must as soon as reasonably practicable take all reasonable steps to address or remove these practices;

(d) provide to the Manufacturer a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and

(e) within seven (7) days of the Manufacturer’s request (or such longer period as the Manufacturer agrees), provide to the Manufacturer any information or assistance reasonable requested by the Manufacturer;

(i) concerning the Customer’s compliance with the Act;

(ii) concerning the Customer’s operations and supply chains;

(iii) to enable the Manufacturer to prepare a Modern Slavery Statement or otherwise comply with the Act; or

(iv) to enable the Manufacturer to assess and address risks of Modern Slavery practices in its operations and supply chains.

15.4 The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach by way of remediation and the Manufacturer will be able to terminate the Contract for any breach by the Customer.

15.5 The Customer warrants that any information supplied to the Manufacturer is true and accurate and may be relied upon for the purposes of the Act.

15.6 The Customer shall indemnify the Manufacturer against any loss or liability suffered by the Manufacturer as a result of the Customer’s breach of this clause 15.

16. Title

16.1 The Manufacturer and the Customer agree that ownership of the Materials shall not pass until:

(a) the Customer has paid the Manufacturer all amounts owing to the Manufacturer; and

(b) the Customer has met all of its other obligations to the Manufacturer.

16.2 Receipt by the Manufacturer of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared, or recognised.

16.3 It is further agreed that until ownership of the Materials passes to the Customer in accordance with clause 16.1:

(a) the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Manufacturer on request;

(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Manufacturer and must pay to the Manufacturer the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;

(c) the production of these terms and conditions by the Manufacturer shall be sufficient evidence of the Manufacturer’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Manufacturer to make further enquiries;

(d) the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for the Manufacturer and must pay or deliver the proceeds to the Manufacturer on demand;

(e) the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Manufacturer and must sell, dispose of or return the resulting product to the Manufacturer as it so directs;

(f) unless the Materials have become fixtures the Customer irrevocably authorises the Manufacturer to enter any premises where the Manufacturer believes the Materials are kept and recover possession of the Materials;

(g) the Manufacturer may recover possession of any Materials in transit whether or not delivery has occurred;

(h) the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Manufacturer;

(i) the Manufacturer may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.

17. Personal Property Securities Act 2009 (“PPSA”)

17.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS

17.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials and/or collateral (account) – being a monetary obligation of the Customer to the Manufacturer for Works – that have previously been supplied and that will be supplied in the future by the Manufacturer to the Customer.

17.3 The Customer undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Manufacturer may reasonably require to:

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 17.3(a)(i) or 17.3(a)(ii);

(b) indemnify, and upon demand reimburse, the Manufacturer for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of the Manufacturer;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Manufacturer;

(e) immediately advise the Manufacturer of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.

17.4 The Manufacturer and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

17.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

17.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

17.7 Unless otherwise agreed to in writing by the Manufacturer, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

17.8 The Customer shall unconditionally ratify any actions taken by the Manufacturer under clauses 17.3 to 17.5.

17.9 Subject to any express provisions to the contrary (including those contained in this clause 17), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

18. Security and Charge

18.1 In consideration of the Manufacturer agreeing to supply the Materials, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering the Manufacturer’s security interest over the Customer on the PPSA, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

18.2 The Customer indemnifies the Manufacturer from and against all the Manufacturer’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Manufacturer’s rights under this clause.

18.3 The Customer irrevocably appoints the Manufacturer and each director of the Manufacturer as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 18 including, but not limited to, signing any document on the Customer’s behalf. 

19. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)

19.1 The Customer must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify the Manufacturer in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Manufacturer to inspect the Materials or to review the Works provided.

19.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

19.3 The Manufacturer acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

19.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Manufacturer makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. The Manufacturer’s liability in respect of these warranties is limited to the fullest extent permitted by law.

19.5 If the Customer is a consumer within the meaning of the CCA, the Manufacturer’s liability is limited to the extent permitted by section 64A of Schedule 2.

19.6 If the Manufacturer is required to replace any Materials under this clause or the CCA, but is unable to do so, the Manufacturer may refund any money the Customer has paid for the Materials.

19.7 If the Manufacturer is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then the Manufacturer may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Customer which were not defective.

19.8 If the Customer is not a consumer within the meaning of the CCA, the Manufacturer’s liability for any defect or damage in the Materials is:

(a) limited to the value of any express warranty or warranty card provided to the Customer by the Manufacturer at the Manufacturer’s sole discretion;

(b) limited to any warranty to which the Manufacturer is entitled, if the Manufacturer did not manufacture the Materials;

(c) otherwise negated absolutely.

19.9 Subject to this clause 19, returns will only be accepted provided that:

(a) the Customer has complied with the provisions of clause 19.1; and

(b) the Manufacturer has agreed that the Materials are defective; and

(c) the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and

(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.

19.10 Notwithstanding clauses 19.1 to 19.9 but subject to the CCA, the Manufacturer shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Customer failing to properly maintain or store any Materials;

(b) the Customer using the Materials for any purpose other than that for which they were designed;

(c) the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) interference with the Works by the Customer or any third party without the Manufacturer’s prior approval;

(e) the Customer failing to follow any instructions or guidelines provided by the Manufacturer;

(f) fair wear and tear, any accident, or act of God.

19.11 In the case of second hand Materials, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Manufacturer as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that the Manufacturer has agreed to provide the Customer with the second hand Materials and calculated the Price of the second hand Materials in reliance of this clause 19.11.

19.12 The conditions applicable to the warranty given on Materials supplied by the Manufacturer are contained on the “Warranty Documentation” that will be supplied with the Materials.

19.13 The Manufacturer may in its absolute discretion accept non-defective Materials for return in which case the Manufacturer may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.

19.14 Notwithstanding anything contained in this clause if the Manufacturer is required by a law to accept a return then the Manufacturer will only accept a return on the conditions imposed by that law.

19.15 Subject to clause 19.1, customised, or non-stocklist items or Materials made or ordered to the Customer’s specifications are not acceptable for credit or return.

20. Additional Warranty

20.1 In accordance with and further to clause 19;

(a) the Manufacturer warrant to the original purchaser that the product is free from manufacturing and material defects for one (1) year from date of despatch to the Customer’s Worksite; and

(b) products that become defective during the period mentioned in clause 20.1(a) shall be repaired, or in the Manufacturer’s discretion replaced. Parts used for repair or replacement are only warranted for the remainder of the warranty period. This limited warranty is contingent upon proper use of the hardware products covered and does not cover products which have been subjected to unusual physical stress or unauthorised repairs.

20.2 The Customer agrees that the Manufacturer shall not be liable for any damage, loss, or personal injury, (including, but not limited to, the failure of the Customer to follow the Manufacturer’s instructions) or expense occasioned by any act or omission of the Manufacturer, the Manufacturer’s employees, or agents in providing the Works.

20.3 Notwithstanding clauses 7.2 and 23, the Manufacturer shall not be liable for any incidental or consequential damages of any kind (including, but not limited to, any interruption of service, loss of business, good will or anticipated profits) the Customer suffers, even if the Manufacturer is notified of the possibility of such damages.

20.4 The Manufacturer makes no other express or implied warranty with respect to hardware products other than the limited warranty mentioned above. All implied warranties, (including, but not limited to, implied warranty of merchantability, fitness, or applicability for a particular purpose) is excluded.

21. Intellectual Property

21.1 Where the Manufacturer has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules, and products shall remain vested in the Manufacturer, and shall only be used by the Customer at the Manufacturer’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Manufacturer.

21.2 The Customer warrants that all designs, specifications, or instructions given to the Manufacturer will not cause the Manufacturer to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Manufacturer against any action taken by a third party against the Manufacturer in respect of any such infringement.

21.3 The Customer agrees that the Manufacturer may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Manufacturer has created for the Customer.

22. Default and Consequences of Default

22.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Manufacturer’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

22.2 If the Customer owes the Manufacturer any money, the Customer shall indemnify the Manufacturer from and against all costs and disbursements:

(a) incurred; and/or

(b) which would be incurred and/or

(c) for which by the Customer would be liable;

in regard to legal costs on a solicitor and own client basis, internal administration fees, the Manufacturer’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

22.3 Further to any other rights or remedies the Manufacturer may have under this Contract, if a Customer has made payment to the Manufacturer, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Manufacturer under this clause 22 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.

22.4 Without prejudice to the Manufacturer’s other remedies at law the Manufacturer shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Manufacturer shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Manufacturer becomes overdue, or in the Manufacturer’s opinion the Customer will be unable to make a payment when it falls due;

(b) the Customer has exceeded any applicable credit limit provided by the Manufacturer;

(c) the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

23. Cancellation

23.1 Without prejudice to any other remedies the Manufacturer may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Manufacturer may suspend or terminate the supply of Works to the Customer. The Manufacturer will not be liable to the Customer for any loss or damage the Customer suffers because the Manufacturer has exercised its rights under this clause.

23.2 The Manufacturer may cancel any Contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice the Manufacturer shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to the Manufacturer for Works already performed. The Manufacturer shall not be liable for any loss or damage whatsoever arising from such cancellation.

23.3 In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Manufacturer as a direct result of the cancellation (including, but not limited to, any loss of profits).

23.4 Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

24. Privacy Policy

24.1 All emails, documents, images or other recorded information held or used by the Manufacturer is Personal Information, as defined and referred to in clause 24.3, and therefore considered Confidential Information. The Manufacturer acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Manufacturer acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Manufacturer that may result in serious harm to the Customer, the Manufacturer will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.

24.2 Notwithstanding clause 24.1, privacy limitations will extend to the Manufacturer in respect of Cookies where the Customer utilises the Manufacturer’s website to make enquiries.  The Manufacturer agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:

(a) IP address, browser, email client type and other similar details;

(b) tracking website usage and traffic; and

(c) reports are available to the Manufacturer when the Manufacturer sends an email to the Customer, so the Manufacturer may collect and review that information (“collectively Personal Information”)

If the Customer consents to the Manufacturer’s use of Cookies on the Manufacturer’s website and later wishes to withdraw that consent, the Customer may manage and control the Manufacturer’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

24.3 The Customer agrees for the Manufacturer to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by the Manufacturer.

24.4 The Customer agrees that the Manufacturer may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:

(a) to assess an application by the Customer; and/or

(b) to notify other credit providers of a default by the Customer; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.

24.5 The Customer consents to the Manufacturer being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.

24.6 The Customer agrees that personal credit information provided may be used and retained by the Manufacturer for the following purposes (and for other agreed purposes or required by):

(a) the provision of Works; and/or

(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or

(d) enabling the collection of amounts outstanding in relation to the Works.

24.7 The Manufacturer may give information about the Customer to a CRB for the following purposes:

(a) to obtain a consumer credit report;

(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.

24.8 The information given to the CRB may include:

(a) Personal Information as outlined in 24.3 above;

(b) name of the credit provider and that the Manufacturer is a current credit provider to the Customer;

(c) whether the credit provider is a licensee;

(d) type of consumer credit;

(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);

(f) advice of consumer credit defaults (provided the Manufacturer is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Manufacturer has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);

(g) information that, in the opinion of the Manufacturer, the Customer has committed a serious credit infringement;

(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

24.9 The Customer shall have the right to request (by e-mail) from the Manufacturer:

(a) a copy of the Personal Information about the Customer retained by the Manufacturer and the right to request that the Manufacturer correct any incorrect Personal Information; and

(b) that the Manufacturer does not disclose any Personal Information about the Customer for the purpose of direct marketing.

24.10 The Manufacturer will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

24.11 The Customer can make a privacy complaint by contacting the Manufacturer via e-mail. The Manufacturer will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at oaic.gov.au. 

25. Unpaid Seller’s Rights

25.1 Where the Customer has left any item with the Manufacturer for repair, modification, exchange or for the Manufacturer to perform any other service in relation to the item and the Manufacturer has not received or been tendered the whole of any monies owing to it by the Customer, the Manufacturer shall have, until all monies owing to the Manufacturer are paid:

(a) a lien on the item; and

(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

25.2 The lien of the Manufacturer shall continue despite the commencement of proceedings, or judgment for any monies owing to the Manufacturer having been obtained against the Customer.

26. Service of Notices

26.1 Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Contract;

(c) by sending it by registered post to the address of the other party as stated in this Contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

26.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

27. Trusts

27.1 If the Customer at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Manufacturer may have notice of the Trust, the Customer covenants with the Manufacturer as follows:

(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;

(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;

(c) the Customer will not without consent in writing of the Manufacturer (the Manufacturer will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

(i) the removal, replacement or retirement of the Customer as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

28. Building and Construction Industry Security of Payment Act 2002

28.1 At the Manufacturer’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.

28.2 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

29. General

29.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.

29.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

29.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Customer (even if they form part of the Customer’s purchase order).

29.4 Subject to clause 19, the Manufacturer shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Manufacturer of these terms and conditions (alternatively the Manufacturer’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

29.5 The Manufacturer may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.

29.6 The Customer cannot licence or assign without the written approval of the Manufacturer.

29.7 The Manufacturer may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Manufacturer’s sub-contractors without the authority of the Manufacturer.

29.8 The Customer agrees that the Manufacturer may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Manufacturer to provide Works to the Customer.

29.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to the Manufacturer.

29.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

29.11 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.