EPlus Building Products Pty Ltd (T/As Ecore) –
Non Domestic Terms & Conditions of Trade

  1. Definitions
    1. ACL: means Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
    2. Manufacturer: shall mean EPlus Building Products T/A E-Core and its successors and assigns.
    3. Contract: means any agreement for the provision of Goods or Services by the Company to the Customer.
    4. Customer: shall mean the Customer or any person acting on behalf of and with the authority of the Customer.
    5. Guarantor: means that person (or persons), or entity who agrees herein to be liable for the obligations and debts of the Customer on a principal debtor basis.
    6. Goods: shall mean any goods, equipment and/or other facilities supplied by the Manufacturer to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
    7. GST: means the tax imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
    8. Order: means a purchase order or order submitted by the Customer.
    9. Services: shall mean all services supplied by the Manufacturer to the Customer and includes any testing, advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
    10. Price: shall mean the cost of the Goods as agreed between the Manufacturer and the Customer subject to clause 6 of this contract.
    11. PPSA: means the Personal Property Securities Act 2009 (Cth) and its associated regulations as amended.
    12. Purchase Money Security Interest: has the meaning specified in the PPSA.
    13. Terms: means these terms and conditions of trade.
  2. Application of Terms
    1. Unless, otherwise agreed by Manufacturer in writing, the Terms apply to all quotations, offers and purchase orders made or accepted by Manufacturer and to every Contract and cannot be varied or replaced by any other terms, including Customer’s terms of purchase (if any).
    2. The Terms may include additional terms in Manufacturer’s quotation, which are not inconsistent with the Terms.
    3. Manufacturer may vary or amend these Terms by written notice to Customer at any time. Any variations or amendments will apply to quotations or orders placed after the notice date.
    4. Where these Terms form part of a contract between Manufacturer and Customer, the terms of that contract prevail to the extent of any inconsistency with these Terms.
  3. Acceptance
    1. Any instructions received by the Manufacturer from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Manufacturer shall constitute acceptance of the terms and conditions contained herein.
    2. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
    3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Manufacturer.
    4. None of the Manufacturer’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Manufacturer in writing nor is the Manufacturer bound by any such unauthorised statements.
    5. The Customer undertakes to give the Manufacturer not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address facsimile number, or business practice).
  4. Quotation and Orders
    1. Any quotation provided by Manufacturer to Customer for the proposed supply of Goods is valid for 30 days, an invitation to treat only, and only valid if in writing.
    2. A Contract is accepted by Manufacturer when Manufacturer accepts, in writing or electronic means, an Order from Customer (Order Confirmation) or provides Customer with Goods.
    3. Each supply which Manufacturer makes in response to an Order will be regarded as a separate Contract.
    4. If Customer places the Order subject to finance, Manufacturer will not be obliged to procure or supply Goods until Customer has provided written evidence to Manufacturer’s reasonable satisfaction that such finance will be provided.
  5. Goods, Services & Specifications
    1. The Goods and Services are as described on the invoices and quotation as provided by Manufacturer to the Customer.
    2. The Goods and Services are supplied in accordance with Specifications. Specifications are shown in the Order are deemed to be checked and accepted by the Customer
    3. The Customer is solely responsible and must itself examine the Goods at its costs, to ensure they are fit or suitable for the Customer’s purposes.
  6. Price & Payment
    1. At the Manufacturer’s sole discretion, the Price shall be either:
      (a) the Price as indicated on invoices provided by the Manufacturer to the Customer in respect of Goods supplied; or
      (b) the Price stated to be the Manufacturer’s current price, at the date of delivery of the Goods, according to the Manufacturer’s current Price list; or
      (c) the Price shall (subject to clause 6.4) be the Manufacturer’s quoted price which shall be binding upon the Manufacturer provided that the Customer shall accept in writing the Manufacturers quotation within fourteen (14) days.
    2. The Price is subject to reasonable change from time to time upon written notice to Customer.
    3. Unless otherwise specified by Manufacturer in writing, all prices are:
      (a) quoted ex-works from Manufacturer’s warehouse, factory or depot; and
      (b) exclusive of all freight costs, import charges, customs duties, GST, taxes, imposts and levies relating to Goods, which are additionally to Customer’s account.
    4. The prices quoted by Manufacturer are based on the Specifications provided by Customer at the time of quotation, Manufacturer reserves the right to reasonably change the Price if there is any change in the Specifications, drawings or plan of scheduled works.
    5. At the Manufacturer’s sole discretion, a deposit or payment of a percentage of the Price (up to 100%) may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
    6. Time for payment for the Goods shall be of the essence and as stated on the invoice, quotation or Order. If no time is stated, then subject to the Manufacture’s absolute right to require payment in full on supply, payment is due thirty (30) days from end of month of date of invoice (Payment Date).
    7. Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
    8. Payment terms may be revoked or amended at Manufacturer’s sole discretion immediately upon giving Customer written notice.
    9. Payment will be made by cash, or by bank cheque, or by credit card or by direct credit, or by any other method as agreed to between the Customer and the Manufacturer.
    10. The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Manufacturer.
  7. Delivery of Goods / Services
    1. Delivery of the Goods shall be made to the Customer’s address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Manufacturer’s address.
    2. Delivery of the Goods to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of the Manufacturer for the purpose of
      transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
    3. If Customer is unable or unwilling to accept physical delivery of Goods, the Manufacturer will be entitled to arrange for storage of the Goods at Customer’s risk and reasonable cost, including all reasonable transportation, storage and other associated costs, payable monthly on demand.
    4. The Manufacturer’s obligation to deliver is discharged on arrival or provision of Goods at the Customer’s nominated delivery destination or nominated agent or carrier.
    5. The costs of carriage and any insurance which the Buyer reasonably directs the Manufacturer to incur shall be reimbursed by the Buyer (without any set-off or other withholding whatsoever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Buyer’s agent.
    6. Where there is no agreement that the Manufacturer shall send the Goods to the Customer, delivery to a carrier at limited carrier’s risk at the expense of the Customer is deemed to be delivery to the Customer.
    7. The Manufacturer may part deliver the Goods (in accordance with the agreed delivery schedule) and may invoice the Customer for each part of Goods delivered in accordance with the provisions in these Terms.
    8. Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
    9. The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
      (a) such discrepancy in quantity shall not exceed 5%, and
      (b) the Price shall be adjusted pro rata to the discrepancy.
    10. Any obligation of Manufacturer to supply Goods is subject to its ability to secure materials, labour, shipping and other services. In case of failure to supply, or partial supply, Customer is entitled to a refund of any prepayments made by Customer, but only to the extent that such prepayments relate to the parts of Goods which Company fails to supply.
    11. Any period or date for delivery of the Goods is an estimate only and is not a contractual commitment. Manufacturer will use its reasonable endeavors to meet any estimated dates but, subject to the ACL, will not be liable for any loss or damage suffered by Customer or any third party for failure to meet the estimated date.
    12. The failure of the Manufacturer to deliver shall not entitle either party to treat this contract as repudiated.
    13. The Manufacturer shall not be liable for any loss or damage whatsoever due to failure by the Manufacturer to deliver the Goods (or any of them) promptly or at all.
    14. Deliveries required to be dispatched other than by Manufacturer’s normal carrier may incur additional freight charges at Customer’s cost.
  8. Passing of Risk and Title
    1. Risk in the Goods and all insurance responsibility will pass to Customer immediately on the Goods being delivered to Customer.
    2. Title to and ownership of the Goods shall remain with Manufacturer until the price for the Goods as well as any other amounts Customer may owe the Manufacturer under this agreement have been paid in full.
    3. If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Manufacturer is entitled, without prejudice to any of its other rights or remedies under these Terms (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the contract. The production of these terms and conditions by the Manufacturer is sufficient evidence of the Manufacturer’s rights to receive the insurance proceeds without the need for any person dealing with the Manufacturer to make further enquiries.
    4. Until receipt of payment in full, Customer shall:
      (a) store Goods in a manner which makes them readily identifiable as the property of Manufacturer;
      (b) hold Goods as bailee of Manufacturer;
      (c) hold the proceeds of any sale of Goods on trust for Manufacturer in a separate account with a bank to whom Customer has not given security, however
      failure to do so does not affect Customer’s obligation to deal with the proceeds as trustee;
      (d) keep, and provide Manufacturer at any time on reasonable request, proper and complete stock records covering the receipt, identification, storage, location, sale and movement of Goods.
    5. Notwithstanding clause 8.4, Customer is entitled until notified by Manufacturer or until the happening of any of the events set out in clause 8.8 to sell or utilise the Goods in the normal course of its business, in which case the proceeds of resale must be held in trust for Manufacturer in a separate account.
    6. Manufacturer is entitled at any time while any debt remains outstanding by Customer to notify Customer of its intention to take possession of Goods and for this purpose Customer irrevocably authorises and licenses Manufacturer and its servants and agents to enter upon the land and buildings of Customer with all necessary equipment to take possession of Goods.
    7. On receipt of notice from Manufacturer or on the happening of any of the events set out in clause 8.8, the following applies:
      (a) Customer’s authority to sell or otherwise deal with Goods as set out in clause 8.5 is withdrawn;
      (b) Manufacturer may withhold delivering further Goods and all invoices issued by Manufacturer to Customer become due and payable immediately; and
      (c) Customer must immediately deliver all Goods to Manufacturer.
    8. Customer shall give immediate notice to Manufacturer if:
      (a) Customer becomes bankrupt or insolvent or if there is a risk of bankruptcy or insolvency;
      (b) any step is taken (including without limitation, any application made, proceedings commenced, or resolution passed or proposed in a notice of meeting) for the winding up or dissolution of Customer, or for the appointment of a bankruptcy trustee, administrator, receiver, liquidator or similar functionary;
      (c) Customer resolves to enter into or enters into a scheme of arrangement with or for the benefit of its creditors;
      (d) Customer becomes unable to pay its debts when they fall due;
      (e) an event analogous to any of those set out in clause 8.8 occurs.
  9. Customer Disclaimer
    1. The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Manufacturer and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgment and that the Manufacturer shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequent customer.
  10. Defect / Returns / Shortages
    1. The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery or provision of the Goods notify the Manufacturer of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.
    2. The Customer shall afford the Manufacturer an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the
      Goods are defective in any way. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
    3. For defective Goods, which the Manufacturer has agreed in writing that the Customer is entitled to reject, the Manufacturer’s liability is limited to either (at the Manufacturer’s discretion) replacing the Goods or repairing the Goods provided that:
      (a) the customer has complied with the provision of clause 8.1;
      (b) the Goods are retuned at the Customer’s cost within seven (7) days of the delivery date;
      (c) the Manufacturer will not be liable for Goods which have not been stored or used in a proper manner;
      (d) the Customer has allowed the Manufacturer to inspect the alleged defect in the Goods in accordance with clause 10.2.
    4. If the quantity of the Goods delivered does not correspond with the quantity stated in an Order Confirmation, Customer shall only be liable to pay for the
      quantity delivered in the case of short-delivery and for the price stated in the Order in the case of over-delivery (subject in the latter case to Customer permitting Manufacturer to collect any surplus Goods), provided that in no event shall such short or over-delivery entitle Customer to damages or give Customer a right to rescind the Contract.
    5. Any surplus Goods delivered shall remain the property of Manufacturer and Customer shall take all necessary precautions for proper storage, safe custody and protection of such surplus Goods until the time of their removal by Manufacturer.
    6. When any shortages, claim for damaged Goods or non- compliance with the Specifications or this Contract is accepted by Manufacturer, Manufacturer may, at its option, repair, replace or refund the price of the Goods.
    7. Subject to clause 10.8, Manufacturer will not under any circumstances accept Goods for return as the Goods are deemed to be special ordered or made to order or configured or customised.
    8. If Customer is a consumer, nothing in this clause 10 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
    9. If the Customer on-sells the Goods prior to the expiration of the time period set out in clause 10.1, the Customer is deemed to have accepted the Goods.
  11. Queensland – Building and Constructions Industry Payment Act 2004, New South Wales – Building and Construction Industry Security of payments Act 1999, Victorian – Building and Construction Industry Security of Payments Act 2002, Western Australia – Construction Contracts Act 2004, South Australian Construction Industry Security of Payment Act 2009 and Australian Capital Territory Building and Construction Industry (Security of Payment) Act 2009
    1. At the Manufacturer’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the relevant Building and Construction Industry Security of Payment Act as set out in the heading (if applicable) may apply.
    2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the relevant Building and Construction Industry Security of Payment Act as set out in the heading.
  12. The Australian Consumer Law
    1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Australian Consumer Law, except to the extent permitted by the Australian Consumer Law where applicable.
  13. Local Standards
    1. It is the responsibility of Customer at its own costs to:
      (a) observe any applicable laws in Australia in regard to the use and storage of Goods;
      (b) apply for and obtain all necessary certifications, licences, permits or other authorisations required by the local law in relation to the use of Goods.
    2. Where an order in a state or territory requires the Customer to hold a specific license, registration or permit the Customer acknowledges that the Manufacturer cannot deliver the Goods or any goods until the Customer supplies the Manufacturer with a valid license registration or permit number.
  14. Force Majeure
    1. Neither party will be liable in any way howsoever arising under the Contract to the extent that it is prevented from acting by events beyond its reasonable control including but not limited to, an Act of God; war; civil disturbance; COVID-19 restrictions (which includes restrictions, regulations or directives imposed by the Federal Government and/or any State Government including but not limited to venue capacity restrictions for indoor and outdoor gatherings, lockdowns, and intrastate or interstate travel restrictions); requisitioning governmental restrictions, prohibitions or enactments of any kind; import or export regulations; strikes; industrial disputes; difficulties in obtaining workmen or materials; breakdown of machinery; fires; or accident. If a force majeure event occurs, either party may suspend or terminate the Contract by giving the other party written notice.
  15. Intellectual Property
    1. Manufacturer owns or is licensed to use trademarks, confidential information and all other copyright, patent, design or trademark rights in relation to the Goods (IP).
    2. Where the Manufacturer has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Manufacturer, and shall only be used by the Buyer at the Manufacturer’s discretion.
    3. Conversely, in such a situation, where the Buyer has supplied drawings, the Manufacturer in its sale conditions may look for an indemnity (the specifications and design of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Manufacturer).
    4. Customer acknowledges Manufacturer’s title to the IP and must not:
      (a) claim any right, title or interest in the IP;
      (b) register or record or attempt to register or record anywhere in the world any of the IP or any derivations, improvements or variations, or aid or abet anyone else to do so;
      (c) manufacture or have manufactured or sell or have sold any goods, or provide any services, using or taking advantage of the IP.
    5. Customer acknowledges that any derivation, variation, modification or improvement to any of the IP will be and remain Manufacturer’s property. Customer hereby assigns to Manufacturer any intellectual property rights that it may create or obtain in such any derivation, variation, modification or improvement.
    6. Customer shall indemnify Manufacturer for and in respect of claims by any third party in relation to Goods which arise from, or can be attributed to, any special requirements or specifications of Customer.
    7. Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Manufacturer then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party, and shall fully indemnify Manufacturer against all liabilities, costs and expenses which Manufacturer may incur as a result of any steps taken by Manufacturer in accordance with any such order involving infringement of any third party intellectual property rights.
    8. The Buyer warrants that all designs or instructions to the Manufacturer will not cause the Manufacturer to infringe any patent, registered design or trademark in the execution of the Buyers order
  16. Default & Consequences Of Default
    1. If Customer defaults in the payment of any money due to Manufacturer by the Payment Date, or if at any time the credit standing of Customer, in the opinion of Manufacturer, is at risk or has been impaired, or the Customer becomes insolvent, 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 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer then in addition to any other rights which may be conferred upon Manufacturer by law or equity, all moneys which would have been payable by Customer to Manufacturer at a later date on any account becomes immediately due and payable without any notice by Manufacturer to Customer and Manufacturer may do any or all of the following:
      (a) all amounts owing to the Manufacturer shall, whether or not due for payment immediately become payable;
      (b) charge Customer interest on any sum due by Customer at the rate of 1.5% compounding per calendar month calculated daily, and shall accrue at such a rate after as well as before any judgement;
      (c) charge Customer for, and Customer must indemnify Manufacturer from, all costs and expenses (including without limitation all legal costs and  expenses including on a solicitor and own client basis) incurred by it resulting from the default or in taking action to enforce compliance with the Contract or to recover any Goods,
      (d) cancel cease or suspend the supply of any further Goods to Customer,
      (e) by written notice to Customer terminate any uncompleted Contract with Customer.
    2. 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), the Manufacturer may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Manufacturer will not be liable to the Customer for any loss or damage the Customer suffers because the Manufacturer exercised its rights under this clause.
    3. If any account remains unpaid at the end of the second month after supply of the Goods or Services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to the interest payable under clause 16.1 hereof.
  17. Personal Property Securities
    1. Notwithstanding anything to the contrary contained in the Terms, the PPSA applies to the Terms.
    2. Unless otherwise defined in these Terms, the terms and expressions used in this clause have the meanings given to them in, or by virtue of, the PPSA.
    3. It is the intention of the Manufacturer and hereby agreed by the Customer that property in the Goods shall not pass until:
      (a) the customer has paid all amounts owing for all the Goods, and
      (b) the Customer has met all other obligations due by the Customer to the Manufacturer in respect of all contracts between the Manufacturer and the Customer.
    4. Customer grants, and Manufacturer may register on the Personal Property Securities Register (PPSR), a security interest in all Goods provided under the Contract, including but not limited to intellectual property and all other present or after-acquired property.
    5. Customer must do whatever is necessary in order to give a valid security interest over Goods which is able to be registered by Manufacturer of the PPSR,
    6. Where permitted by the PPSA, Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
    7. To the extent permitted by the PPSA, Customer agrees that the provisions of Chapter 4 of the PPSA which are for the benefit of Customer or which place obligations on Manufacturer will apply only to the extent that they are mandatory or Manufacturer agrees to their application in writing, and where Manufacturer has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
    8. Manufacturer may allocate amounts received from Customer in any manner Manufacturer determines, including in any manner required to preserve any
      Purchase Money Security Interest (PMSI) it has.
    9. This Contract is a security agreement and Manufacturer has a PMSI in all present and future Goods supplied by Manufacturer to Customer and the  proceeds and the security interest is a continuing interest irrespective of whether there are monies or obligations owing by Customer at any particular time.
    10. Customer agrees to execute any documents, provide all relevant information and co-operate fully with Manufacturer to ensure that Manufacturer has a perfected security interest in the personal property charged.
    11. Customer agrees to notify Manufacturer of any change in Customers’ structure, including sale or disposition of any part of Customer’s business, any change in directorships, shareholders or change in partnership or trusteeship 7 days prior to any such change taking effect.
  18. Liability
    1. Except as the Terms specifically state or as contained in any express warranty provided in relation to Goods, the Contract does not include by implication any other term, condition, warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of Goods or any contractual remedy for their failure.
    2. If Customer is a consumer nothing in these Terms excludes, restricts or modifies Customer’s rights or remedies against Manufacturer for failure of a statutory guarantee under the ACL.
    3. If Customer on-supplies Goods to a consumer and:
      (a) Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Manufacturer’s liability to Customer; and
      (b) Goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of Manufacturer’s liability to Customer; however arising under or in connection with the sale, installation, use, storage or any other dealings with Goods by Customer or any third party.
    4. If clauses 18.2 and 18.3 do not apply, then, other than stated in the Contract or any written warranty statement, Manufacturer is not liable to Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealing with Goods by Customer or any third party.
    5. Manufacturer is not liable for any indirect or consequential losses or expenses suffered by Customer or any third party, howsoever caused, including but not limited to loss or turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
    6. For the avoidance of doubt, in circumstances in which the Goods supplied are unfinished goods in which the Customer or an agent of the Customer performs further manufacturing, processing or finishing processes, or installation, the Manufacturer shall not be liable to the Customer for any fault or defect caused, or contributed to, by any such manufacturing processes, value adding processes, processing installation or finishing and the Customer further indemnifies and holds the Manufacturer harmless for all claims, losses, damages, actions, suits and demands (including any consequential and economic loss) from any third parties arising out of or in relation to such goods to the extent that such losses arise from any further manufacturing processes, value adding processes, processing or finishing.
    7. Customer indemnifies Manufacturer against all claims arising out of the installation of Goods not performed by Manufacturer and where Manufacturer’s recommended safety measures have not been complied with.
    8. Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any non-excludable State or Federal legislation.
    9. In the event of any breach of this contract by the Manufacturer the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Manufacturer exceed the Price of the Services.
  19. Unpaid Manufacturer’s Rights To Dispose Of Goods
    1. In the event that:
      (a) the Manufacturer retains possession or control of the Goods; and
      (b) payment of the Price is due to the Manufacturer; and
      (c) the Manufacturer has made demand in writing of the Customer for payment of the Price in terms of this contract and
      (d) The Manufacturer has not received the Price of the Goods, then, whether the property in the Goods has passed to the Customer or has remained with the
      Manufacturer, the Manufacturer may dispose of the Goods and may claim from the Customer the loss to the Manufacturer on such disposal.
  20. Lien
    1. Where the Manufacturer has not received or been tendered the whole of the price, or the payment has been dishonored, the Manufacturer shall have:
      (a) a lien on the goods;
      (b) the right to retain them for the price while the Manufacturer is in possession of them;
      (c) a right of stopping the goods in transit whether or not delivery has been made or ownership has passed; and
      (d) a right of resale,
      (e) the foregoing right of disposal, provided that the lien of the Manufacturer shall continue despite the commencement of proceedings or judgment for the price having been obtained.
  21. Confidentiality
    1. Customer shall not without the written consent of Manufacturer disclose to any third party or use for any purpose other than contemplated under this Contract any proprietary or confidential documents, knowledge and information, prices, tools, formulas, samples, models, drawings, data standard sheets, manuscripts and other technical documentation supplied or made known to Customer by Manufacturer. Manufacturer and Customer shall use all reasonable endeavours to keep confidential (and ensure that their employees and agents keep confidential) all information received by them relating to any part of the business and affairs of the other party provided that these obligations shall not apply to information which is:
      (a) or becomes publicly known through no wrongful act of the party concerned; or
      (b) required to be disclosed by an order of law or other binding authority; or
      (c) disclosed to any adviser of either party bound by a professional
  22. Governing Law
    1. The Terms and any Contract are governed by the laws of Victoria and the parties submit to the jurisdiction of Victoria.
  23. Assignment
    1. The Contract may only be assigned by Customer with the prior written and informed consent of Manufacturer.
  24. Waiver
    1. No neglect, delay or indulgence on the part of Manufacturer in enforcing these Terms shall prejudice the rights of Manufacturer or be construed as a waiver of any such rights.
  25. Enforceability
    1. If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of remaining terms.
  26. Revocation/Cancellation
    1. These Terms are subject to the Manufacturer’s revocation or cancellation at any time, without liability, provided that the Manufacturer completes current Order in process at the time of cancellation.
  27. General
    1. These Terms are subject to the Manufacturer’s revocation or cancellation at any time, without liability, provided that the Manufacturer completes current Order in process at the time of cancellation.