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TERMS AND CONDITIONS OF TRADE

Ms9518

BRISBANE GLASS PTY LTD

TERMS AND CONDITIONS OF TRADE - Ms9518

 

1 Definitions

1.1 “BG” means Brisbane Glass Pty Ltd T/A Brisbane Glass , its successors and assigns or any person acting on behalf of and with the authority of Brisbane Glass Pty Ltd T/A Brisbane Glass .

1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3 “Goods” means all Goods or Services supplied by BG to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between BG and the Client in accordance with clause 4 below.

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

2 Acceptance

2.1 The Client accepts that unless otherwise agreed in writing, these terms and conditions will supersede and cancel all prior and any subsequent discussions and arrangements between the parties.

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

2.3 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and BG.

2.4 Goods are supplied by BG only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

2.5 None of BG’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of BG in writing nor is BG bound by any such unauthorised statements. All communications are precontractual and do not constitute an offer that is capable of acceptance by the Client.

2.6 It shall be the Client’s responsibility to factor in any lead time requirements and advise BG of any time constraints prior to placing an order.

2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (New South Wales & South Australia), the Electronic Transactions Act 2001 (Australian Capital Territory), the Electronic Transactions (Victoria) Act 2000, the Electronic Transactions Act 2003 (Western Australia), the Electronic Transactions (Northern Territory) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (Tasmania), (whichever is applicable), or any other applicable provisions of that Act or any Regulations referred to in that Act.

3 Change in Control

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

4 Price and Payment

4.1 At BG’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by BG to the Client; or

(b) BG’s quoted price (subject to clause 4.3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

4.2 The Client accepts that the return of an accepted quotation and payment of deposit shall not be binding on BG until BG is satisfied that all details on the Client’s acceptance documentation is correct and that BG has communicated it’s acceptance of the Client’s order in writing. Any amendments that may be required to the documents and consequently signed or countersigned, shall be deemed to be pre-contractual until BG is fully satisfied and communicates acceptance of the order in writing.

4.3 BG reserves the right to change the Price if a variation to BG’s quotation is requested. Variations will be charged for on the basis of BG’s quotation, and will be detailed in writing, and shown as variations on BG’s invoice. The Client shall be required to respond to any variation submitted by BG within ten (10) working days.

Failure to do so will entitle BG to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

4.4 At BG’s sole discretion, a deposit of fifty percent (50%) of the Price is required on acceptance of BG’s quotation.

4.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by BG, which may be:

(a) before delivery of the Goods;

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

(c) failing any notice to the contrary, thirty (30) days following the end of the day in which a statement / invoice is posted to the Client’s address or address for notices.

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

4.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by BG nor to withhold payment of any invoice because part of that invoice is in dispute.

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

5 Delivery of Goods

5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:

(a) the Client or the Client’s nominated carrier takes possession of the Goods at BG’s address; or

(b) BG (or BG’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.

5.2 At BG’s sole discretion, the cost of delivery is in addition to the Price.

5.3 Any time specified by BG for delivery of the Goods is an estimate only. The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. BG will not be liable for any loss or damage incurred by the Client as a result of delivery being late. In the event that the Client is unable to take delivery of the Goods as arranged then BG shall be entitled to charge a reasonable fee for redelivery and/or storage.

5.4 BG may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.5 Any delays experienced by the Client in the delivery of the Goods due to adverse weather conditions, or any obstruction to or at the delivery site and any requirements for use of cranes, lifts, hoists, or other ancillary equipment are additional costs which are at the Client’s expense unless otherwise specified in BG’s quotation.

6 Risk

6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, BG is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by BG is sufficient evidence of BG’s rights to receive the insurance proceeds without the need for any person dealing with BG to make further enquiries.

6.3 If the Client requests BG to leave Goods outside BG’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.

6.4 Any advice, recommendation, information, assistance or service provided by BG in relation to Goods supplied is given in good faith and based on BG’s own knowledge and experience and shall be accepted without liability on the part of BG and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods.

6.5 BG shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, BG accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

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

6.7 The Client acknowledges that Goods supplied may:

(a) fade or change colour over time; and

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

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

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

6.8 Timber is a natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst BG will make every effort to match sales samples to the finished Goods, BG accepts no liability whatsoever where such samples differ to the finished Goods supplied.

6.9 Timber is a hydroscopic material subject to expansion and contraction; therefore, BG will accept no responsibility for gaps that, may appear during prolonged dry periods.

7 Specifications

7.1 The Client acknowledges that:

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

(b) while BG may have provided information or figures to the Client regarding the performance or rating of the Goods, the Client acknowledges that BG has given these in good faith,  and are estimates based on industry prescribed estimates and/or testing standards.

8 Access

8.1 The Client shall ensure that BG has clear and free access to the site at all times to enable them to undertake site visits or deliver to the Goods. BG shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of BG.

8.2 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, lifting or other unloading equipment as may be deemed necessary by BG.

9 Compliance with Laws

9.1 The Client and BG shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities, and Australian Standards that may be applicable to the Goods and/or Services.

10 Title

10.1 BG and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid BG all amounts owing to BG; and

(b) the Client has met all of its other obligations to BG.

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

10.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 10.1:

(a) the Client is only a bailee of the Goods and must return the Goods to BG on request.

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for BG and must pay to BG the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c) N/A

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

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

(f) the Client irrevocably authorises BG to enter any premises where BG believes the Goods are kept and recover possession of the Goods.

(g) BG may recover possession of any Goods in transit whether or not delivery has occurred.

(h) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of BG.

(i) BG may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

11 Personal Property Securities Act 2009 (“PPSA”)

11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

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

11.3 The Client undertakes to:

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

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

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

(iii) correct a defect in a statement referred to in clause 11.3 (a) (i) or 11.3 (a) (ii);

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

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

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

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

11.4 BG and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

11.7 Unless otherwise agreed to in writing by BG, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

11.8 The Client must unconditionally ratify any actions taken by BG under clause 11.3 to 11.5.

11.9 Subject to any express provisions to the contrary (including those contained in this clause 11) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

12 Security and Charge

12.1 In consideration of BG agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

12.2 The Client indemnifies BG from and against all BG’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising BG’s rights under this clause.

12.3 The Client irrevocably appoints BG and each director of BG as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.

13 Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

13.1 The Client must inspect the Goods immediately on delivery and must within seven (7) days of delivery notify BG in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow BG to inspect the Goods. Where appropriate, such claims are required to be supported with photographic evidence and eye witness statements.

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

13.3 BG acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

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

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

13.6 If BG is required to replace the Goods under this clause or the CCA, but is unable to do so, BG may refund any money the Client has paid for the Goods.

13.7 If the Client is not a consumer within the meaning of the CCA, BG’s liability for any defect or damage in the Goods is:

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

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

(c) otherwise negated absolutely.

13.8 Subject to this clause 13, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 13.1; and

(b) BG has agreed that the Goods are defective; and

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

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

13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, BG shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Client failing to properly maintain or store any Goods;

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

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

(d) the Client failing to follow any instructions or guidelines provided by BG; (e) fair wear and tear, any accident, or act of God.

13.10 freight costs.

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

14 Intellectual Property

14.1 Where BG has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of BG. Under no circumstances may such designs, drawings and documents be used without the express written approval of BG.

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

14.3 The Client agrees that BG may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which BG has created for the Client.

15 Default and Consequences of Default

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

15.2 If the Client owes BG any money the Client shall indemnify BG from and against all costs and disbursements incurred by BG in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BG’s contract default fee, and bank dishonour fees).

15.3 Further to any other rights or remedies BG may have under this contract, if a Client has made payment to BG, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by BG under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.

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

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

(b) the Client has exceeded any applicable credit limit provided by BG;

(c) the Client 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

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

16 Cancellation

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

16.2 BG may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice BG shall repay to the Client any money paid by the Client for the Goods. BG shall not be liable for any loss or damage whatsoever arising from such cancellation.

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

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

17 Privacy Act 1988

17.1 The Client agrees for BG to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by BG.

17.2 The Client agrees that BG may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

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

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

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

17.3 The Client consents to BG being given a consumer credit report to collect overdue payment on commercial credit.

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

(a) the provision of Goods; and/or

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

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

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

17.5 BG may give information about the Client to a CRB for the following purposes:

(a) to obtain a consumer credit report;

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

17.6 The information given to the CRB may include:

(a) personal information as outlined in 17.1 above;

(b) name of the credit provider and that BG is a current credit provider to the Client;

(c) whether the credit provider is a licensee;

(d) type of consumer credit;

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

(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and BG has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments); (g) information that, in the opinion of BG, the Client has committed a serious credit infringement; (h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

17.7 The Client shall have the right to request (by e-mail) from BG:

(a) a copy of the information about the Client retained by BG and the right to request that BG correct any incorrect information;

and

(b) that BG does not disclose any personal information about the Client for the purpose of direct marketing.

17.8 BG will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.

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

18 Dispute Resolution

18.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:

(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

19 Other Applicable Legislation

19.1 At BG’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 (Victoria), Building and Construction Industry Security of Payments Act 1999 (New South Wales), Construction Contracts Act 2004 (Western Australia), Building and Construction Industry Payments Act 2004 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory of Australia), Building and Construction Industry Security of Payments Act 2009 (Tasmania), Building and Construction Industry Security of Payments Act 2009 (South Australia) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.

19.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause

19.3 (each as applicable), except to the extent permitted by the Act where applicable.

20 Service of Notices

20.1 Any written notice given under this contract shall be deemed to have been given and received:

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

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

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

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

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

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

21 General

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

21.2 These terms and conditions and any contract to which they apply shall be governed by the laws in the state of Queensland.  

21.3 Subject to clause 13, BG shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by BG of these terms and conditions (alternatively BG’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

21.4 Neither party to this contract may assign this contract, any payment or any other right, benefit or interest under this contract without the written consent of the other party (which shall not be unreasonably withheld). BG may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of BG’s sub-contractors without the authority of BG.

21.5 The Client agrees that BG may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for BG to provide Goods to the Client.

21.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

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

 

Ms9518