CONDITIONS OF SALE FOR INVOICE FORM
1.1. In these terms and conditions:
‘Affiliates’ means any related body corporate to you, as defined under the Corporations Act.
‘Australian Consumer Law’ means the Australian Consumer Law appearing at Schedule 2 of the Competition and Consumer Act 2010 (Cth).
‘Buyer’ - means the purchaser of the Goods and/or Services specified overleaf.
‘Claims’ – means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent and “Claims” has a corresponding meaning in the plural.
‘Consequential Loss’ – means any real or anticipated loss of profit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity, or otherwise.
‘Consumer Goods’ – means goods of a kind ordinarily acquired for personal, household or domestic use or consumption, as that expression is used in the Australian Consumer Law.
‘Consumer Guarantee’ – has the meaning given to it in the Australian Consumer Law or guidance provided by the Australian Competition and Consumer Commission.
‘Consumer Services’ – means services of a kind ordinarily acquired for personal, household or domestic use or consumption, as that expression is used in the Australian Consumer Law.
‘Corporations Act’ means the Corporations Act 2001 (Cth).
‘Goods’ – means goods, equipment or other items (in each case described in any Order) which the Seller has supplied (or has agreed to supply) to the Buyer (including without limitation, accessories or parts).
‘GST’ - means a tax imposed under the GST Law.
‘GST Law’ - has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or if that Act does not exist for any reason, means any Act imposing or relating to a GST and any regulation made under it and includes, where the context permits, any Australian Taxation Office ruling or determination.
‘Intellectual Property’ - means all intellectual property rights (whether registered or not registered including all applications and the right to apply for registration) which are owned by, pertaining to, or licensed to the Seller, including without limitation:
a. any trade marks, service marks, trade names, domain names, brands and company names, trade secrets and copyright works, URLs, drawings, designs, discoveries, inventions, improvements, technical data (including research and development material, certification or testing material), formulae, computer programs, software, software code, know-how, logos, symbols and similar industrial or intellectual property rights;
b. all patents, patent applications, registered designs and unregistered design rights; and
c. all client, supplier and consultant information related to the Seller.
‘Intellectual Property Rights’ - means any intellectual property rights subsisting anywhere in the world, including:
a. rights in relation to:
i. copyright (registered or unregistered);
ii. inventions (including patents, innovation patents and utility models);
iii. confidential information, technical information and know-how;
iv. registered and unregistered designs;
v. registered and unregistered trade marks;
vi. circuit layout rights, topography rights, and rights in databases;
b. any similar rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields which subsist or may at any time subsist including any Moral Rights;
c. any application and the right to apply for registration for any of the above; and
d. any right of action against any party in connection with any of the above.
‘Irrigation Product’ – means any irrigation goods, equipment or other items, (including without limitation, accessories or parts (in each case described in an Order).
‘Irrigation Project’ – means a custom irrigation project performed by the Seller, its employees, contractors or agents at the request of the Buyer.
‘Law’ means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these terms and conditions or the provision of the Goods and/or Services.
‘Loss’ – means any loss, Claim, liability, damage, charges, payments, costs or expenses (whether direct or indirect and whether accrued or paid) including legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties.
‘Moral Rights’ – means any moral rights including the rights described in Part IX of the Copyright Act 1968 (Cth) (as amended and revised from time to time), or other analogous rights arising under any statute, that exists or that may come to exist, anywhere in the world.
‘Order’ means any order placed by the Buyer for the purchase of Goods and/or Services as set out in a purchase order form.
‘PPSA’ – means the Personal Property Securities Act 2009 (Cth).
‘Seller’ – means Emmetts SA Pty Ltd (ACN 160 224 706) trading as Emmetts Irrigation which is the Seller of the Goods and/or the Services.
‘Services’ – means any services provided to the Buyer pursuant to a Buyer’s order for such services and can include, without limitation, irrigation project design, delivery, assembly, installation, maintenance and/or servicing services.
‘Site’ – means the site upon which Goods or Services are provided by the Seller at the request of the Buyer or where, if applicable, an Irrigation Project is being undertaken.
‘Supply’ – has the meaning given to it in the GST Law.
‘Taxable Supply’ – has the meaning given to it in the GST Law.
‘Third Party Products’ - means any software, documentation, products, equipment, parts or components licensed to us by a third party, or otherwise manufactured or supplied by a third party for the purposes of the Goods and/or the Services.
2.1. These terms and conditions apply equally to you and your Affiliates. Any reference in these terms to “you”, “your” or the “Buyer” therefore includes your Affiliates.
3. TERMS OF SALE
3.1. The Goods and Services sold by the Seller are sold on:
a. these terms and conditions (which include any special conditions added at Annexure 1);
b. the terms and conditions relating to any credit account of the Buyer;
c. the terms of any purchase order form; and
d. the terms of any applicable invoice.
3.2. To the extent of any inconsistency between these terms and conditions and the terms and conditions relating to any of the documents listed in clause 3.1 b-d above, the terms of these terms and conditions prevail.
4. SELLER’S QUOTATIONS
4.1. Unless previously withdrawn, the Seller’s quotations are valid for the period specified therein or, where no period is stated, within 7 days from the date of quotation.
4.2. Notwithstanding the above, a quotation for Goods and/or Services given by the Seller does not constitute an offer and the Seller reserves the right to accept or refuse any Order placed by the Buyer.
4.3. A quotation of the Seller is not binding on the Seller and is provided as a guide only.
4.4. Prices quoted by the Seller are subject to variation based on factors including the cost of supply and currency exchange rates.
4.5. Unless otherwise stated, all prices quoted by the Seller are exclusive of GST.
4.6. Unless otherwise stated, any delivery costs, ground preparation works for the supply, assembly, installation or servicing of Irrigation Products are in addition to the price quoted in a quotation of the Seller.
5.1. An Order constitutes an offer by the Buyer to purchase the Goods and/or Services specified in the Order on and subject to these terms and conditions.
5.2. An Order is irrevocable once accepted by the Seller and cannot be cancelled (subject to clause 8), either wholly or partially, by the Buyer without the written consent of the Seller (which may be given or withheld in the Seller’s absolute discretion).
5.3. The Seller:
a. is not in any circumstance under an obligation to accept the whole or any part of an Order; and
b. may in its sole discretion, reject, cancel or terminate any Order made by the Buyer at any time without being required to provide a reason.
5.4. An Order is not binding on the Seller unless it is accepted in writing by a duly authorised officer of the Seller.
6.1. The Buyer must pay for the Goods and/or Services in full on or before the due date for payment (without set-off, counterclaim, deduction or otherwise), unless other terms of payment have been agreed to between the Buyer and Seller in writing.
6.2. Without limiting any other rights of the Seller, if the Buyer does not pay any amount which is payable to the Seller by the due date for payment, the Buyer must pay the Seller interest calculated at the rate of 14% per annum on the amount remaining unpaid from the due date or dates for payment until those amounts are actually received as clear funds by the Seller;
6.3. If an Order is subject to finance, the Buyer must:
a. pay any deposit specified to the Seller (Deposit) on the date specified in the Order;
b. immediately make application for such finance and do all things necessary and reasonable to obtain finance approval; and
c. notify the Seller on or before the approval date specified in the order (Approval Date) (which must be before any delivery date) whether it has been able to obtain finance.
6.4. If the Buyer is unable to obtain approval for finance and notifies the Seller of that fact:
a. on or before the Approval Date, the Seller will:
i. not be bound to complete the supply; and
ii. be entitled to reimburse itself (out of the Deposit) for all expenditure incurred by it in connection with the applicable Order and will refund the balance of the Deposit (if any) to the Buyer; or
b. after the Approval Date:
i. the Buyer shall be bound to complete the purchase and will not be entitled to a refund of the deposit; and
ii. the Seller will be entitled to apply the Deposit towards any liabilities owed by the Buyer to the Seller.
6.5. The Buyer may obtain finance from third parties referred to by the Seller. Any arrangements with such third party finance providers are made at the Buyer’s own judgement and risk and the Seller accepts no liability in relation to any Loss suffered by the Buyer in any way caused by or connected with such third party finance.
PAYMENT TERMS SPECIFIC TO IRRIGATION PROJECTS
6.6. For any Order for an Irrigation Project, the payment terms are as follows:
a. A 20% deposit (of the total Order) is due and payable at the time the Order is accepted by the Seller;
b. 70% (of the total Order) is due and payable 7 days prior to the components of the project being delivered to the Site; and
c. The remaining 10% (of the total Order) is due and payable once the project has been commissioned, when the project is deemed to be completed, and has been turned on for the first time.
6.7. The Seller’s quotation for an Irrigation Project will quote a price in United States Dollars (USD). However, the costs of the project will be invoiced in Australian Dollars, with a conversion occurring at the exchange rate of the day the payment is made to the Seller.
6.8. Notwithstanding the above, the Buyer may request to make payment in USD, which the Seller may choose to accept as legal tender.
7. GST AND OTHER TAXES
7.1. Unless otherwise agreed between the Seller and the Buyer in writing, any consideration payable for any Supply under these terms and conditions is exclusive of GST.
7.2. If any Supply made by one party (the “Supplier”) to the other party (the “Recipient”) under or in connection with these terms and conditions is a Taxable Supply:
a. The amount payable by the Recipient for that Supply will be increased by the amount of GST payable for that Supply so that the net amount retained by the Supplier after payment of that GST is the same as if the Supplier was not liable to pay any GST in respect of that Supply; and
b. The Supplier must issue a GST invoice to the Recipient
7.3. The Buyer must promptly pay all stamp duty, transaction, registration and similar taxes, including fines and penalties which may be payable to, or required to be paid by, any appropriate government authority or determined to be payable in connection with the execution, delivery, performance or enforcement of these terms and conditions and these terms and conditions and the Order or any payment, receipt or other transaction contemplated by these terms and conditions and the Order.
8.1. No order may be cancelled by the Buyer except with consent of the Seller in writing (which may be withheld for any reason) and on terms which will indemnify the Seller against any and all Losses it incurred up to the date of cancellation in fulfilling the Buyer’s order.
9. GOODS AND SERVICES PURCHASED ON CREDIT
9.1. You may purchase Goods and/or Services on credit from us. The provision to you of Goods and/or Services on credit will be governed by the terms of our credit application as amended from time to time.
10. UNPAID ACCOUNTS
10.1. The Seller reserves the following rights in relation to the Goods until all accounts owed by the Buyer to the Seller are fully paid:
a. ownership of any Goods which have not been fully paid for;
b. to enter the Buyer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
c. to keep or resell any Goods repossessed pursuant to (b) above.
10.2. If the Goods have been sold by the Buyer, the Buyer will hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold in a separate identifiable account, to be held on trust for the benefit of the Seller and will pay such amount to the Seller upon request by the Seller. Notwithstanding the provisions above, the Seller is entitled to maintain an action against the Buyer for the purchase price of the Goods and the risk of the Goods will pass to the Buyer upon delivery.
11. RETURN OF GOODS
11.1. To the extent permitted by law, the Seller is not under any duty to accept Goods returned by the Buyer.
11.2. If the Seller accepts returned Goods from the Buyer, the Buyer must return the Goods to the Seller at the Seller’s place of business referred to in these terms and conditions, at the Buyer’s own cost.
12. TITLE AND RISK
12.1. Without limiting any rights of rejection that the Buyer may have under these terms and conditions or at law, legal and beneficial title to (and property in) the Goods passes to the Buyer on payment in full by the Buyer for such Goods. Notwithstanding any other provision of these terms and conditions, the Buyer agrees and acknowledges that, for the purposes of the PPSA, the Seller has a security interest in the Goods and in any right in relation to or derived from the Goods. The Seller may register its security interests under this clause. The Buyer waives the right to receive a verification statement under the PPSA and agrees that, if Chapter 4 of the PPSA applies to the enforcement of the Seller’s security interests, the following provisions of the PPSA will not apply to that enforcement: section 95, to the extent that it requires the Seller to give a notice to the Buyer; section 96; section 130, to the extent that it requires the Seller to give a notice to the Buyer; subsection 132(3)(d); subsection 132(4); section 135; section 142 and section 143(b).
12.2. The Seller bears the risk of and must indemnify the Buyer against any Loss of (including loss of use), or damage to, the Goods before delivery, before collection by or on behalf of the Buyer, or before the time that the Buyer otherwise takes possession of the Goods, and the Buyer accepts the risk in respect of the Goods thereafter.
13.1. The delivery times made known to the Buyer are estimates only.
13.2. The Buyer acknowledges that the Seller is not liable for any Loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods.
13.3. Any delay in dispatch or delivery of the Goods does not extinguish, reduce or limit the Buyer’s obligation to accept the Goods on delivery or pay for the Goods by the relevant due date for payment.
a. the Goods are delivered by or on behalf of the Seller to the Buyer, collected by or on behalf of the Buyer or the Buyer otherwise takes possession of the Goods; and
b. the Buyer forms the reasonable opinion that the Goods are improper, defective or damaged (whether in transit or not), the Buyer must give the Seller a written notice containing reasonable details of the alleged damage or defect (“Damage Notice”).
13.5. If the Buyer does not give the Seller a Damage Notice within 3 days of delivery, collection or taking possession of the Goods, or within 30 days for Goods that have concealed damage, then to the maximum extent permitted by Law:
a. the Buyer will be deemed to have accepted the Goods as received in a proper condition and free of damage and defects; and
b. the Buyer releases the Seller from any liability, Loss, damage and all Claims in respect of any actual or alleged damage or defects relating to the Goods.
14.1. The Buyer must keep the Goods insured against all risks for Goods of that kind from the time the risk in the Goods passes to the Buyer until the time that title in the Goods passes to the Buyer in accordance with these terms and conditions.
14.2. The Buyer holds the proceeds of that insurance on trust for the Seller up to the amount it owes the Seller in respect of the Goods and must keep such proceeds in a separate account until the liability to the Seller is discharged and must immediately pay that amount to the Seller.
15. INTELLECTUAL PROPERTY
15.1. Nothing in these terms and conditions or in the supply of Goods to the Buyer gives the Buyer any right or license to any of the Intellectual Property, trademarks, logos, names or designs, whether registered or unregistered, of the Seller.
15.2. Unless the Buyer is expressly authorised by law, the Buyer must not itself, or participate in or permit any other person to:
a. Sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost or otherwise use the Goods in any way or for any public or commercial purpose without the Seller’s prior written consent; or
b. Otherwise infringe upon the Seller’s Intellectual Property Rights in using the Goods.
16.1. The Buyer warrants that:
a. it has the power to execute, deliver and perform its obligations under these terms and all necessary corporate and other action has been taken to authorise that execution, delivery and performance;
b. it is not insolvent, nor will it be made insolvent as a result of this transaction;
c. it has provided the Seller with all relevant information that it is aware of or should be aware of, or any other matter that may affect the provision of the Goods and/or the Services;
d. it shall not, and will procure that its personnel, shall not infringe any Intellectual Property Rights of the Seller;
e. where any measurements or other specifications are provided by it to the Seller for the purposes of acquiring Goods and/or Services, such measurements or other specifications are accurate;
f. it will use the Goods lawfully, in line with their instructions and as they were designed to be used;
g. it has not relied in any way on the Seller’s skill, judgement or anything said or communicated to it by the Seller in relation to the Goods and/or the Services and that it has satisfied or will satisfy itself as to the condition, suitability and fitness of the Goods and/or Services for the Buyer’s purposes prior to use of the Goods and provision of the Services.
16.2. Where any of the Goods and/or Services consist of or include Third Party Products:
a. The warranty in respect of those Third Party Products will be that specified by the licensor, manufacturer or supplier of those Third Party Products;
b. The Seller will take reasonable steps to pass on the benefit of any warranties, representations or undertakings provided by the licensor, manufacturer or supplier of those Third Party Products, and will act as the point of contact between the Buyer and the licensor, manufacturer or supplier of the Third Party Products, with regard to the defect and the activities of the licensor, manufacturer or supplier with regard to the rectification of the defect. This is the limit of the Seller’s liability with respect to defective Third Party Products.
17.1. To the fullest extent permitted by law, the Seller excludes all liability for any Loss whatsoever suffered by the Buyer as a result of any act, omission or statement made by the Seller, its employees, contractors or agents whether negligent or not, except that nothing in these terms and conditions limits any liability imposed by any statute unless or to the extent that it is lawful to do so.
17.2. All Consumer Guarantees and any other implied statutory conditions or warranties are excluded to the fullest extent permitted by law and the Seller's only obligation resulting from a breach of a Consumer Guarantee (other than a guarantee under sections 51, 52 or 53 of the Australian Consumer Law) is limited, at the Seller’s option, to:
a. Where the Good is a Consumer Good:
i. Replacement of the Goods or supply of equivalent Goods;
ii. Repair of the Goods;
iii. Payment of the cost of replacing the Goods or acquiring equivalent Goods; or
iv. Payment of the cost of having the Goods repaired.
b. Where the Services are a Consumer Service:
i. Supplying the Services again; or
ii. Payment of the cost of having the Services supplied again.
17.3. Notwithstanding any other provision of these terms and conditions, the total liability of the Seller for any Loss suffered by the Buyer due to any act or omission of the Seller is limited to the maximum amount paid by the Buyer to the Seller under the applicable Order.
17.4. Notwithstanding any other provision of these terms and conditions, the Seller is not liable for and the Buyer releases the Seller from any Claims in respect of faulty or defective design of any Goods supplied unless such design has been wholly prepared by the Seller. Notwithstanding this, in any event, the Seller’s liability under this subclause is limited as follows –
a. If the Goods are new:
i. the Buyer acknowledges that the extent of the warranty is that of the manufacturer of those Goods and this is the only warranty given to the Buyer in respect of the Goods; and
ii. the Seller agrees to assign to the Buyer, upon request by the Buyer, the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable; or
b. If the Goods are second hand:
i. the Buyer acknowledges its sole remedy is limited to the making good of any defect within a period of one month from the date of purchase, provided the Goods are returned to the place of purchase and:
(a) the defects have arisen solely from the Seller’s faulty materials or workmanship;
(b) the defects are not in the engine or drive train and which are independent of human control to detect;
(c) the Goods have not suffered maltreatment, misuse or the fault is due to fair wear and tear; or
(d) the Goods have not had work done to them or tampered with in any way.
17.5. Notwithstanding any other provision of these terms and conditions, and to the fullest extent permitted by law, the Seller will not be liable to the Buyer for any Consequential Loss suffered by the Buyer as a result of any act or omission whatsoever of the Seller, its employees, contractors or agents.
17.6. To the extent that the Seller is liable to the Buyer in any way, the liability of the Seller is to be reduced proportionately to the extent to which the Buyer or any other third party’s acts or omissions caused or contributed to any such liability.
17.7. The Seller is not liable for any Losses incurred by the Buyer due to unforeseen delays in the supply of the Goods and/or Services and in the commissioning of the Goods.
17.8. The Seller is not liable if the Buyer suffers Loss as a result of the Buyer or any other person failing to maintain, service or update any Third Party Product.
17.9. Nothing in these terms and conditions is to be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law which by law cannot be excluded, restricted or modified.
18.1. The Buyer indemnifies the Seller and its employees, agents and contractors against all Loss suffered or sustained by the Seller in connection with:
a. The use or misuse of the Goods by any person;
b. The storage or handling of the Goods by any person;
c. Any act, omission, negligence or default of the Buyer (or its agents);
d. A breach of any Law by the Buyer (or its agents); and
e. Any injury to or death of any person or any damage to or loss of property resulting from any negligence, wrongful act or omission, or breach of statutory duty by the Buyer (or its agents).
19. SECURITY INTERESTS
19.1. Terms that are defined in the PPSA have the same meaning in this clause.
19.2. The Buyer agrees and acknowledges that, for the purposes of the PPSA, the Seller has a security interest in the Goods and in any right in relation to or derived from the Goods including in any proceeds from, including any receivables of the Buyer as a result of, the disposal of the Goods or any part of them and any product manufactured or created by using the Goods or any part of them.
19.3. These terms and conditions are a security agreement for the purposes of the PPSA
19.4. The Seller may register its security interest in any manner it sees fit under this clause, including as a purchase money security interest, and the Buyer agrees to provide all assistance reasonably required to allow the Seller to do so.
19.5. The Buyer waives the right to receive a verification statement under the PPSA.
19.6. The Buyer agrees that, if Chapter 4 of the PPSA applies to the enforcement of the Seller's security interests, the following provisions of the PPSA will not apply to that enforcement:
a. Section 95 to the extent that it requires the Seller to give a notice to the Buyer;
b. Section 96;
c. Section 130, to the extent that it requires the Seller to give a notice to the Buyer;
d. Subsection 132(3)(d);
e. Subsection 132(4);
f. section 135;
g. section 142; and
h. section 143.
19.7. The Buyer agrees that the Seller may allocate any payment that it receives from the Buyer in any manner the Seller determines (despite any purported allocation or appropriation by the Buyer) including to satisfy obligations that are not secured; then to satisfy obligations that are secured, but are not secured by a purchase money security interest, in the order in which those obligations were incurred and then to satisfy any obligations secured by a purchase money security interest in the order in which those obligations were incurred.
19.8. Subject to subsection 275(7) of the PPSA, neither party may disclose information of the kind referred to in subsection 275(1) of the PPSA.
20.1. The Buyer agrees that the Seller may contract to a third party (or parties) any part or all of the Services at its sole discretion.
20.2. The Buyer agrees that the Seller is not liable in relation to any Loss, damage, harm or injury caused by any third party to which it contracts with for the performance of such Services.
21. IRRIGATION PRODUCT INSTALLATION AND SERVICING
21.1. If required prior to any installation or servicing of any Irrigation Products, it is the Buyer’s responsibility to obtain Site plans from Dial Before You Dig and to provide such plans to the Seller.
21.2. You agree that the costs of an Order may need to be revised if the installation and servicing of Irrigation Products are caused by:
a. delays in Dial Before you Dig Site plans being obtained;
b. rock being hit during works at the Site where it was not reasonably anticipated;
c. Site preparation works;
d. Site access issues;
e. delays in obtaining council approval or other required approvals, permits, authorisations or consents; or
f. if project parameters change due to water access, bore issues or a Force Majeure event.
21.3. The Buyer is responsible at its sole cost to:
a. provide free and unrestricted Site access to the Seller, its employees, agents or contractors;
b. clear the Site as required in preparation for any installation works to be performed;
c. obtain any required approvals, permits, authorisations or consents;
d. provide access to, and use of, a 240V power source to the Seller, its employees, agents or contractors; and
e. provide access to an adequate water supply to the Seller, its employees, agents or contractors.
21.4. There is no obligation on the Seller, its employees, agents or contractors to make good the Site.
21.5. Where an Irrigation Product is required to be pulled out of the ground for repair or maintenance, the Seller is not responsible if such Irrigation Product is rusted or corroded and is not able to be pulled out of the ground, serviced and maintained as planned.
21.6. Maintenance to Irrigation Products required to be pulled out of the ground is done at the risk of the Buyer and the Seller bears no liability for any damage caused to any such Irrigation Product.
21.7. The Buyer must provide the Seller free of charge, access to and use of a 240V power source and an adequate supply of water at the Site.
21.8. The Buyer undertakes to put in place and keep in place for the duration of an Irrigation Project, a public liability insurance policy in the name of the Buyer only and providing insurance cover against damage and injury to the Seller and their equipment, their employees, agents and contractors upon the Site and the Buyer hereby indemnifies the Seller their employees, agents and contractors against any injuries or Losses suffered by any of them that are not recoverable under such insurance policy.
22. FORCE MAJEURE
22.1. For the purpose of this clause, ‘Force Majeure Event’ shall mean circumstances beyond the control of the Seller including, but not limited to, act/s of God, strike, suspension or failure of electricity supply or other relevant power supply, pandemic (including COVID-19), riot, war, acts of terror, robbery, civil commotion, adverse weather conditions, disaster caused by fire and/or water, actions of government authorities or other authority, failure by any statutory undertaker, utility company or like body to provide services or any act or omission of any third party to the extent that performance or non-performance is relied upon by the Seller.
22.2. The Seller is not liable for and is hereby released from any obligation and all liability for, all Claims connected with the performance of or non-fulfilment or late delivery, if actual delivery of the Goods or any parts thereof are delayed in consequence of a Force Majeure Event, or if Services cannot be performed due to a Force Majeure Event.
23. ENTIRE AGREEMENT
23.1. These conditions contain the entire agreement between the Buyer and Seller in relation to its subject matter, and there are no other oral or written representations, stipulations, warranties, agreements, or understandings which apply to the agreement unless otherwise agreed by the parties in writing.
24.1. Any variation or modification to these conditions must be in writing and agreed by both parties.
25.1. If there is any inconsistency between these conditions and the conditions of a Buyer’s order, these conditions will prevail to the extent of such inconsistency.
26.1. By engaging the Seller to provide the Goods and/or the Services, the Buyer is deemed to have accepted these conditions, and to have agreed that they apply to the exclusion of all others.
27. NO WAIVER
27.1. The Seller’s failure or delay to exercise a power or right does not operate as a waiver of that power or right and the exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
27.2. A waiver is not effective unless it is in writing and is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
28.1. The Buyer must not assign or transfer any of its rights or obligations under these conditions without the prior written consent of the Seller.
29.1. If any provision of these conditions are invalid, unenforceable or illegal for any reason, the reminder of the conditions remain otherwise in full force and effect apart from such provision which will be deemed severed to the extent of its invalidity, unenforceability or illegality.
30. GOVERNING LAW AND JURISDICTION
30.1. The contract for sale of the Goods and/or Services is governed by the laws of Victoria, Australia.
30.2. The parties irrevocably submit to the jurisdiction of the courts of Victoria.
Read this document carefully before you sign.
THIS DOCUMENT BECOMES A LEGALLY BINDING CONTRACT UPON ACCEPTANCE BY THE SELLER
Signed by the Buyer (or for & on behalf of the Buyer (if Buyer is a company) by its duly authorised representative):
Name of Buyer (or if Buyer is a company, by its duly authorised representative (Please print):
Signed for & on behalf of the Seller by its duly authorised representative:
Name of Seller’s authorised representative (Please print):
Date of Contract ____ / ____ / ________
Estimated Delivery Date ____ / ____ / ________