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Terms & Conditions

STANDARD TERMS AND CONDITIONS

 

1.  DICTIONARY

 

In these Terms and Conditions, the words below have the following meanings:

$ means AUD, unless specified otherwise.

Agreement means each Offer which is accepted by the Company.

AUD means Australian dollars.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.

Business Day means any day except a Saturday, Sunday or public holiday in Victoria.

Company means Phoenix Industries Pty Ltd ABN 48 007 215 876 of 926 Mountain Highway, Bayswater, Victoria 3153 trading as ‘Phoenix Tapware’.

Confidential Information means all information disclosed by the Company to the Customer and includes these Terms and the prices of the Products or Services but excludes information that:

(a) is public knowledge or becomes available to the Customer from a source other than the Company (otherwise than as a result of a breach of confidentiality by the Customer or any person to whom it has disclosed the information); and

(b)is rightfully known to, or in the possession or control of the Customer and not subject to an obligation of confidentiality in accordance with the terms of an Agreement.

Consequential Loss means loss beyond the normal measure of damages and includes indirect loss, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss opportunities.

Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.

Customer means the entity or person requesting that Products or Services be supplied to it by the Company.

Customer Background Materials means all material in whatever form (including documents, specifications, designs, plans, processes, information and data) owned or licensed by the Customer and provided by, or on behalf of, the Customer to the Company for the purposes of an Agreement.

Delivery Fee means $18.

Discount means an amount equal to 1.25% of the amount charged under clause 4.1(a).

End Purchaser means the person who acquires the Products for their own consumption or use and not for resale or resupply.

Express Warranties means the warranties the Company wishes to provide to End Purchasers, as set out in the Warranty Card.

Fees has the meaning provided to it in clause 4.1.

Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party including any fire, failure or shortage of power supplies, abnormally inclement climate or weather conditions, flood, lightning, storm, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, riot, disease, civil commotion, insurrection, political instability, armed conflict, war, terrorist action or the threat of any of the foregoing.

GST has the meaning given to it by the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended, varied or replaced from time to time.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; or in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; or the occurrence of any event that has substantially the same effect to any of the above events.

Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world, including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets and know how, throughout the world for the full period of the rights and all renewals and extensions.

Invoice has the meaning provided to it in clause 4.3.

Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.

Non PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are not of a kind ordinarily acquired for personal, domestic or household use or consumption.

Offer has the meaning provided to it in clause 3.1(b).

Price List means any price list or catalogue of the Company’s products published and distributed by the Company in hard copy and electronically (including by making available for viewing through its official website) to its actual and prospective customers, setting out product details and current prices (being the current recommended retail price), as updated and replaced by the Company from time to time in its discretion.

Products means the products to be supplied by the Company to the Customer under an Agreement.

Quotation or Quote means the quote, if any, provided by the Company to the Customer in respect of the Products or Services.

Services means any services provided by the Company to the Customer as listed in the accepted Quote.

Tax or Taxes means any tax, levy, charge, impost, fee, deduction, compulsory loan or withholding (including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, excise and import duties, GST, consumption tax, value added tax or any other taxes, levies or charges), which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any such amounts.

Terms means these Terms and Conditions.

Trading Account Application Form means the form completed by the Customer for a trading account approved by the Company for the provision of Products or Services.

Trading Limit means the value of any trading account facility granted by the Company to the Customer under the Trading Account Application Form.

Warranty Card means the warranty card which sets out the Express Warranties, in the form set out in the Schedule to these Terms.



2.  Application

 

These terms and conditions apply to and govern the supply by the Company of Products or Services to the Customer which are to be provided under an Offer accepted by the Company.

 

3.  Formation of Agreement

 

3.1The Customer acknowledges and agrees that:

(a)by providing a Quotation to the Customer, the Company makes an invitation to treat to the Customer to supply Products or Services to the Customer on these Terms and the Quotation;

(b)the Customer may make an offer to the Company for the Company to supply it with the Products or Services on the terms of:

(i)these Terms and:

(ii)the Price List or any applicable Quotation,

by notifying the Company in writing that it wishes for the Company to supply it with the Products or Services (Offer).

(c) An Offer based on a Quotation can only be made within 30 days of the date the Quotation is provided to the Customer.

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

(a)notifying the Customer, either verbally or in writing, that it accepts the Customer’s Offer;

(b)accepting, in full or part, payment from the Customer for the Products or Services;

(c)making delivery of the Products to the Customer; or

(d)performing the Services.

3.3 An Agreement formed under clause 3.2 will comprise these Terms, any Trading Account Application Form, any Price List or Quotation issued by the Company, and the Invoice.


4.  Price and payment

 

4.1 Unless otherwise agreed by the parties, the price the Customer pays for the Products or Services under an Agreement is:

(a) the price specified in the Price List or Quote (as applicable);

(b)if the amount payable under clause 4.1(a) is less than $100, the Delivery Fee; and

(c) if between the date of the Offer and the date of delivery the costs of supplying the Products increase by reasons beyond the reasonable control of the Company, the amount of the increased costs,

less any applicable Discount (Fees).

4.2 Unless otherwise expressly specified by the Company, all prices stated are exclusive of Taxes (including GST), delivery costs and freight charges and the Customer is solely responsible for payment of all Taxes, delivery and freight charges levied or payable in respect of the Products or Services.

4.3 The Company will invoice the Customer for the Fees at any time following formation of the relevant Agreement (Invoice).

4.4 Unless otherwise stated in the Quotation the due date for payment by the Customer to the Company of the Fees for the Products or Services supplied pursuant to an Agreement (Due Date) is:

(a) 30 days from the end of the month in which the Invoice was issued; or

(b) as set out in the Trading Account Application Form if:

(i) the trading account facility as set out in the Trading Account Application Form has been accepted by the Company; and

(ii) the value of the Invoice, combined with any outstanding amounts owed by the Customer to the Company, does not exceed any approved Trading Limit.

4.5 Any Fees which are paid prior to the Due Date will be reduced by the amount of the Discount.

4.6 If the Customer fails to make any payment by the Due Date or is the subject of an Insolvency Event, then, without prejudice to any other right or remedy available to the Company, the Company may, in its sole discretion, elect to:

(a) suspend any further deliveries to the Customer arising from any Agreement;

(b)cancel any Agreement in respect of any Products or Services not yet supplied to the Customer in whole or in part by the Company;

(c) terminate any Agreement in accordance with clause 17.1 of that Agreement;

(d)enter the property of the Customer in order to repossess the Products or Services;

(e) appoint a receiver or receiver and manager to do anything the law allows a receiver or receiver and manager to do;

(f) charge the Customer interest (both before and after any judgement) on the unpaid amount at the interest rate equivalent to the aggregate of the Australian Bankers’ Association quote rate for 90 day bank bills, as published by the Australian Financial Review on the Due Date, plus 1%, which interest will accrue and be chargeable on and from the first day on which such amounts become overdue until, but excluding the day on which, the Company receives payment of the unpaid amount and all interest accrued thereon in accordance with this clause 4.6
(f) by way of cleared funds;

(g)cancel or suspend any Trading Limits or trading account facilities previously granted to the Customer by the Company; and

(h)cancel any trade discounts or rebates provided, or otherwise offered, to the Customer under any Agreement or other arrangement.

 

5.  Delivery of Products

 

5.1 The Company will deliver the Products to the Customer in the manner:

(a)specified in the Quotation if a Quotation has been issued; or

(b)as otherwise agreed between the Company and the Customer,

and, unless otherwise specified or agreed pursuant to paragraphs (a) or (b) or notified by the Company to the Customer, will be delivered using ground freight with dispatch for shipping of the relevant Products occurring approximately three days after an accepted Offer is received by the Company.

5.2 In the event of the Customer returning or failing to accept any delivery of the Products, the Company shall be entitled to payment for those Products and to treat the obligation to supply the remainder of the Products (if any) as cancelled by the Customer.

5.3 The Company will be entitled to store at the risk and cost of the Customer any Products which the Customer refuses or fails to take delivery of, without limiting any other rights the Company may have.

5.4 The Company will use its reasonable endeavours to deliver the Products on any delivery date specified by the Company however delivery and despatch dates are estimates only and the Company will not, in any circumstances, be liable for late delivery of the Products and later delivery of Products does not entitle the Customer to cancel any order or part order for the Products.

5.5 Without limiting clause 5.4, the Company may deliver a portion of the Products and may invoice or otherwise charge the Customer for that portion.  The Customer may not refuse to accept delivery of the Products or to pay for the Products because only a portion of the quantity ordered was delivered and the Customer agrees that the Company will not be liable for any Loss that the Customer suffers as a result of any delay or cancellation.

5.6 There must be a representative of the Customer present at the time delivery is made of the Products and, if no such representative is present, a redelivery fee may be charged by the Company.

5.7 If the Customer is not a Consumer, the Customer shall only be entitled to return the Products to the Company if it believes the Products are not supplied in accordance with the description, quality or quantity set out in the Agreement.

5.8 Any return of Products under clause 5.7 must:

(a)be made by raising a claim for credit with the Company;

(b)be approved by the Company prior to the Products being returned to the Company;

(c)be made at the Customer’s cost;

(d)be returned in the Products’ original packaging which must be an its original and saleable condition (the Products must not have been installed);

(e)include the Invoice number for the Products being returned; and

(f) be made within seven days of the date of delivery of the Products (unless the claim is in relation to the quantity of Products supplied, in which case the claim must be made within two Business Days of the date of delivery of the Products).

5.9 If the Company, at its sole discretion, determines that the Products returned under clause 5.7 do not meet the description, quality or quantity set out in the Agreement the Company may, at its sole discretion, credit the Trading Account of the Customer with credit equal to the price specified in the Price List or Quote (as applicable) for the relevant Products or supply replacement Products to the Customer.

5.10 If the Company, at its sole discretion, determines in good faith to accept a return of Products for reasons other than because the Products returned do not meet the description, quality or quantity set out in the Agreement the Company will accept the return of the Products subject to the payment by the Customer of a restocking fee equal to 20% of the price which would be paid for those Products under clause 4.1(a).


6.  Title and risk of Products

 

6.1 Title to, and property in, any Products supplied under an Agreement remain with the Company and will only pass to the Customer once all moneys owing by the Customer to the Company in respect of the Agreement or any other agreement or arrangement between the parties have been paid in full.

6.2 Risk in the Products passes to the Customer upon the Products being removed from the Company’s premises, and the Customer indemnifies the Company against any Loss or damage to the Products, however caused, occurring after the Products have been removed from and left the Company’s premises.

6.3 In the event that the Customer is required to return any Products to the Company, risk in the Products passes to the Company if the Company has approved the return of the Products and has confirmed receipt of the Products.

6.4 Until such time as full title, property and ownership of the Products passes to the Customer in accordance with clause 6.1, and while the Products remain in the Customer’s full control and possession:

(a)the Customer must hold the Products as the Company’s fiduciary agent and bailee;

(b) the Company may at any time after payment is overdue require the Customer to deliver up the Products to the Company and, if the Customer fails to deliver up the Products immediately, the Company may enter the premises of the Customer or any third party where the Products are stored and repossess them and, in order to enable the Company to exercise its rights under this clause 6, the Customer expressly authorises and grants the Company an express, irrevocable licence to enter the premises of the Customer to remove or arrange for the removal of the Products; and

(c)the Customer must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the Products which remain the property of the Company. If the Customer does pledge or in any way charge by way of security, for any indebtedness, any of the Products for which property and ownership has not passed to the Customer, the Customer must remove the pledge, charge or security interest immediately and all moneys owing by the Customer to the Company will (without prejudice to any other right or remedy of the Company) immediately become due and payable to the Company.

 

7.  PPSA

 

7.1 Words and expressions used in this clause 7 which are not defined in these Terms but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given to them in the PPSA. 

7.2 Unless a Customer has paid for Products in respect of an Agreement before they are delivered to the Customer, each Customer acknowledges that:

(a) the Agreement for the supply of Products created under these Terms is a security agreement for the purposes of the PPSA, under which the Customer grant the Company a purchase money security interest in the Products to secure the purchase price of the Products;

(b) where the Company has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply; and

(c) the Company is not obliged to act in any way to dispose of or to retain any Products which have been seized by the Company or any person nominated by the Company under its rights under the PPSA.

7.3 Without limiting anything else in these Terms, the Customer consents to the Company effecting a registration on the Personal Property Securities Register (PPSR) in relation to any security interest created by or arising in connection with, or contemplated by, these Terms, including in relation to the Products. The Customer agrees to promptly do all things necessary to ensure that any security interest created under these Terms is perfected and remains continuously perfected, the Company’s priority position is preserved or secured and any defect in any security interest, including registration, is overcome.

7.4 The Customer must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by the Company for that purpose in relation to the Products).  Without limiting the foregoing, the Customer must:

(a)create and implement appropriate policies and systems to register a security interest in relation to the Products where the Customer on sells the Products to a third party; and

(b)where appropriate, take reasonable steps to identify security interests in relation to the Products in the Customer’s favour and to perfect and protect them, with the highest priority reasonably available.

7.5 The Customer must indemnify, and on demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the PPSR, and for the enforcement of any rights arising out of any of the Company’s security interests. 

7.6 The Customer must not change its name, ABN, address or contact details without providing prior written notice to the Company and must not register a financing change statement or a change demand without the Company’s prior written consent.]

7.7 To the extent that the PPSA permits, the Customer waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA. 

7.8 The Customer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if the Company has given prior written consent.

 

8.  Warranties and liability

 

8.1Nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Australian Consumer Law or the Customer’s rights to make a claim in respect of any consumer guarantees or other provision of the Australian Consumer Law.

8.2 Subject to clause 8.4, if the Customer is not a Consumer then, to the extent permitted by law, the Company excludes all liability for any Loss incurred by the Customer as a result of an Agreement.  This clause applies even if the Company knew or ought to have known that it was possible or foreseeable that the Customer would incur such Loss.

8.3 Notwithstanding clause 8.2, if the Customer is a Consumer and the Products or Services are Non PDH Goods or Services, the Company’s liability to the Customer is limited at the Company’s option to:

(a)in the case of the Products:

(i) the replacement of the Products or the supply of equivalent products;

(ii)the repair of the Products;

(iii)the payment of the cost of replacing the Products or of acquiring equivalent products; or

(iv)the payment of the cost of having the Products repaired.; and

(b)in the case of the Services:

(i)the supplying of the Services again; or

(ii)the payment of the cost of having the Services supplied again.

8.4 If the Customer is liable to indemnify a Consumer under the Australian Consumer Law in relation to the supply of Products which are Non PDH Goods or Services, the Company’s liability to the Customer is limited to an amount equal to the lower of:

(a)the cost of replacing the Products;

(b)the cost of obtaining equivalent Products; or

(c)the cost of having the Products repaired.

8.5 Without limiting any other provision in these Terms, the Company is not liable for any Loss the Customer suffers as a result of:

(a)improper use of the Products; and

(b) misuse or neglect of the Products or any other use of the Products which is outside of the ordinary commercial application of the Products or is otherwise inconsistent with the Company’s instructions in relation to the use of the Products.

 

9.  Express Warranties

 

9.1In addition to any rights provided at law, the Company wishes to provide the Express Warranties to any End Purchaser of the Products.

9.2 The Customer must:

(a)ensure that the Warranty Card is included in the packaging of the Products which are supplied or sold to an End Customer;

(b) not remove or alter the Warranty Card, or any Express Warranty contained therein, from any packaging on the Products;

(c)not, without the Company’s express written consent, make any representation to any End Customer regarding the purpose, performance or durability of the Products, which is inconsistent with the Express Warranties or which is in breach of the Australian Consumer Law;

(d) take all steps and do all things necessary to promptly pass on to the Company any claim made by an End Customer arising out of or in connection with the Australian Consumer Law or under an Express Warranty and must, at the Customer’s expense, assist the Company to comply with its obligations under the Australian Consumer Law and the Express Warranty; and

(e) not agree to settle any claim made by an End Customer arising out of or in connection with the Australian Consumer Law or under an Express Warranty without the prior written consent of the Company.

9.3 The Customer expressly acknowledges and agrees that Company is not liable for any advice given by its agents or employees in relation to the suitability for any purpose of the Products or materials supplied by the Company and all such advice relied upon is at the Customer’s sole risk.


10.  Intellectual Property

 

10.1The Customer grants to the Company a non-exclusive, royalty free licence during the term of each Agreement to use, reproduce, modify, adapt and further develop all Intellectual Property Rights in those portions of the Customer Background Materials which are required to enable the Company to supply the Products or perform the Services.

10.2 The Customer represents and warrants to the Company that:

(a) The Customer is the legal and beneficial owner of, or is entitled to use (or will on creation own or be entitled to use); and

(b)is entitled to licence to the Company in accordance with clause 10.1,

the Intellectual Property Rights in the Customer Background Materials.

 

11. Indemnity

 

The Customer indemnifies the Company and holds the Company harmless from and against all Losses (including all legal costs, and any other associated fees and costs) for which the Company incurs as a direct or indirect result of:

(a) recovering any amounts the Customer owes to the Company;

(b)any breach of an Agreement by the Customer (including any breach of the warranties provided by the Customer);

(c) any negligent or wilful act or omission by the Customer, the Customer’s employees, agents, servants, contractors or others for whom the Customer is legally responsible; and

(d) any infringement or alleged infringement of Intellectual Property Rights owned by a third party in respect of any of the Customer Background Materials.

 

12.  No representations

 

The Customer acknowledges and agrees that it has not relied on any representations, inducements or statements made to it by the Company regarding the supply of the Products or Services and it has satisfied itself that the Products and Services are fit for the purpose it requires them for.

 

13.  Confidentiality

 

13.1The Customer:

(a)may use Confidential Information solely for the purposes of the relevant Agreement;

(b)must keep confidential all Confidential Information; and

(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information of the other party must be kept confidential and (B) either have a need to know (and only to the extent that each has a need to know), or have been specifically approved by the other party, or (ii) as required by law or stock exchange regulation.

13.2 The Customer must notify the Company immediately once it becomes aware of any breach of confidentiality and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.

 

14.  Privacy

 

The Customer acknowledges and agrees that personal information (as that term is defined in the Privacy Act 1988 (Cth)) regarding the Customer may be collected, held, used and disclosed by the Company for the purposes set out in the Company’s privacy policy (which privacy policy is available on the Company’s website at www.phoenixtapware.com.au or on request from the Company). The Customer consents to the Company collecting, holding, using and disclosing any such personal information for all purposes specified in the Company’s privacy policy.

 

15.  GST

 

15.1All amounts payable by the Customer in connection with an Agreement do not include an amount for GST. If GST is payable on any supply made by the Company under these Terms, the Customer must pay to the Company, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Customer is required by these Terms to reimburse or indemnify the Company for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that the Company will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by the Company in respect of the reimbursement or payment. This clause does not merge on completion or termination of the relevant Agreement or contract. In this clause, words and expressions which are defined in the GST Act have the same meaning given to them by the GST Act.

 

16.  Force Majeure

 

16.1 The Company will not be liable for any failure to perform or delay in performing its obligations under an Agreement if that failure or delay is due to Force Majeure Event.

16.2 If a Force Majeure Event exceeds 20 Business Days, the Company may immediately terminate the Agreement by written notice to the Customer.

 

17.   Termination

 

17.1Without limiting the Company’s other rights under these Terms, the Company may terminate an Agreement and any trading account facility under a Trading Account Application Form with immediate effect by written notice to the Customer if:

(a)the Customer is the subject of an Insolvency Event;

(b) the Customer has breached any term of the relevant Agreement (including these Terms); or

(c)in accordance with clause 16.2.

17.2 On termination of an Agreement, the Customer must, at its cost and within 10 Business Days of the date of termination, return to the Company all Products the subject of the Agreement (other than any Products which have been paid for) and any Product displays and other promotional materials in relation to the Products.

17.3 If Product displays are not returned to the Company in accordance with clause 17.2 within 30 days of termination of the Agreement, the Company may charge the Customer an amount equal to 50% of the retail price of the relevant Product.

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


18.  Acknowledgements and representations

 

18.1 If a Quote has been issued by the Company, the Customer acknowledges that it has been prepared by the Company on the basis of, and in reliance upon, any information, specifications, data, representations, statements and documents provided by the Customer.

18.2 By making an Offer, the Customer warrants and represents to the Company that it has read and understood these Terms prior to making the Offer, and agrees to be bound by them in full.

18.3 The Customer acknowledges that, from time to time and without notice, the Company may change the construction, design or dimensions of its Products.

 

19.  Inconsistency

 

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

(a) the Price List or Quotation (as applicable);

(b)these Terms;

(c)the Trading Account Application Form; and

(d) the Invoice.

19.2 These Terms shall prevail over any Customer terms and conditions, except to the extent specifically agreed by the Company in writing.

 

20.  Miscellaneous

 

20.1 In these Terms:

(a) the singular includes the plural and vice versa;

(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;

(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;

(d)a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns; and

(e) headings are inserted for convenience and do not affect the interpretation of these Terms.

20.2 Neither an Agreement nor any Offer that has been submitted can be cancelled by the Customer except with the prior written consent of the Company and without prejudice to any other rights the Company may have, the Customer indemnifies the Company for any Loss incurred by the Company in connection with such cancellation.

20.3 The Customer must not assign or otherwise deal with any of its rights or obligations under these Terms without the Company’s prior written consent. The Company may assign or deal with any of its rights or obligations under these Terms (including any right to be paid or chose in action) at any time and without any requirement to notify the Customer.

20.4 The Company may vary these Terms at any time and from time to time and all variations will take effect immediately upon the earlier of the Company posting the amended Terms on its website or providing the amended Terms to the Customer.

20.5 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any of these Terms must be in writing and is only effective to the extent set out in that written waiver.

20.6 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.

20.7 These Terms and the accepted Agreement constitute the entire agreement between the Customer and the Company in respect of the supply of the Products or Services and supersede all previous communications, representations, understandings or agreements.

20.8 These Terms are governed by the laws in force in Victoria, and the Customer and the Company submit to the non-exclusive jurisdiction of the courts of Victoria.

20.9 The provisions of clauses 6, 7, 9, 10, 11, 13, 14, 16 and 20 of these Terms survive the expiry or termination of the Agreement.

20.10 Each party must:

(a)do all acts necessary or desirable to give full effect to an Agreement; and

(b)refrain from doing anything which might prevent full effect being given to an Agreement.

20.11The relationship between the parties is and will remain that of independent contractors, and nothing in the Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.

20.12 Notices by a party must be delivered by hand, prepaid post, facsimile or email and sent to the address of the receiving party specified in the Agreement. Notices shall be deemed to have been received by hand upon delivery, by post within two (2) Business Days of sending, by facsimile upon receipt of a successful transmission report and by email one hour after the email (unless the sender knows that email has failed to send).