Terms and Conditions of Supply of Goods and Services

Definitions:

  • “Authorisation” means all approvals, consents, permits, leases, licences, registrations, certificates and other authorisations from, by or with a Government Agency, including any such authorisations that are required under any Statutory Requirements.
  • “Contract” means the contract between the Supplier and the Customer, which consists of these Terms and any Proposal between the Supplier and the Customer from time to time.
  • “Customer” means the person, company or other entity identified as the customer in a Proposal.
  • “Customer Information” means all documents, information and data provided by the Customer to the Supplier, including, but not limited to, any designs, drawings and specifications, and any information of or concerning the Customer, the Site, the dimensions of the Site, any physical, environmental or climatic conditions on, at or affecting the Site or neighboring land, the current use of the Site, the proposed use of the Site and the proposed use of the Goods.
  • “Force Majeure Event” means any fact, matter, event, circumstance or condition that is outside of the control of the Supplier and that delays or prevents the Supplier from supplying Goods or Services, including, but not limited to, atmospheric and weather conditions, strikes, lock-out, government interference, earthquake, civil commotion, COVID-19, any public health risks, pandemics or epidemics declared by the World Health Organization or by any other government body, and the acts, omissions or negligence of the Customer and the Customer’s Personnel.
  • “Goods” means the goods supplied by the Supplier to the Customer in accordance with these Terms and which are described on the Proposal, which includes the supply of Services, if applicable.
  • “Government Agency” means any federal, state, territory, municipality or other political subdivision, administrative or judicial body, court, ministry, department, commission, authority, instrumentality, tribunal or agency or other governmental, quasi-governmental or regulatory authority or any self-regulatory organization.
  • “Intellectual Property” means any intellectual property rights throughout the world, in any form, and whether registered or unregistered, including, but not limited to, trade marks, patents, copyright, designs, plans, drawings, blueprints, engineering designs, and diagrams, technical information and specifications, software, schematics, mechanical processes and methods of working, manufacturing processes and methods of working, trade secrets and business practices and procedures.
  • “Loss” means any loss, cost, damage, expense, claim, charge or liability of any kind, and howsoever arising, whether present or future, actual or contingent, fixed or unascertained, and includes, but is not limited to, legal, collection and other costs incurred by a party in exercising its rights or enforcing any provisions of a Contract, any special, indirect or consequential loss of any nature, special, aggravated or punitive damages, fines, fees and penalties, increased costs and expenses, loss of profit, loss of revenue, loss of goodwill and loss of business opportunity.
  • “Personnel” means a person’s employees, officers, agents, contractors, invitees and any other person that is under the person’s direct or indirect control.
  • “PPSA” means the Personal Property Securities Act 2009 (Cth).
  • “Price” means the price of the Goods (including any GST if this is expressly stated), which is determined pursuant to clause 2(a) of the Terms.
  • “Proposal” means the form of proposal issued by the Supplier to the Customer for the Supplier to supply Goods or Services to the Customer, which describes the Goods and/or Services to be supplied.
  • “Services” means the services supplied by the Supplier to the Customer in accordance with these Terms and which are described on the Proposal.
  • “Site” means the address specified in the Proposal to which the Goods must be delivered and, if the Goods include Services, where the Services must be performed.
  • “Supplier” means Steelcorp Building Systems Pty Ltd ACN 092 615 471.
  • “Statutory Requirements” means any statute, regulation, order, rule, subordinate legislation or other obligation enforceable under any statute, regulation, order, rule or subordinate legislation.
  • “Terms” means this document titled ‘Terms and Conditions of Supply of Goods and Services’.

1. Terms and Contract

(a) These Terms apply to all Proposals submitted to the Customer by the Supplier from time to time.

(b) Subject to clause 1(d), a Contract is made and these Terms are deemed to be accepted by the Customer when the Customer accepts a Proposal in writing or the Supplier supplies Goods in accordance with a Proposal (whichever occurs first).

(c) The Contract constitutes the entire agreement between the Supplier and the Customer with respect to its subject matter and all other agreements, arrangements, understandings and representations made by, between or on behalf of the parties with respect to that subject matter are excluded. Any terms and conditions issued by the Customer at any time are excluded.

(d) A Proposal is only valid and open to be accepted by the Customer for the period of 30 days after the date of the Proposal (Acceptance Period). Unless otherwise agreed by the Supplier in writing, a Proposal is not binding on the Supplier and cannot be accepted by the Customer after the Acceptance Period has expired.

(e) The Customer acknowledges and agrees that if the Proposal includes a price for services that will not be provided by the Supplier as part of the Goods (Third Party Price):

(i) each Third Party Price is an estimate only and is based on information provided to the Supplier by a third party contractor that is capable of providing the relevant services
(ii) the Supplier is not liable to the Customer for any Loss that arises from, is caused by or is in connection with any Third Party Price being inaccurate, incorrect or not accepted by a third party contractor;
(iii) the Supplier is not an agent or representative of any such third party contractor and cannot bind any such contractor to a particular price or any other terms and conditions with the Customer; and
(iv) the Customer is solely responsible, if it wishes to engage a contractor to provide any particular goods or services, to make arrangements with that contractor directly.

(f) The Supplier is not liable for any Loss that is caused by, arises from or is in connection with any goods or services provided by, and/or the acts, omissions or negligence of, any other contractors that are engaged by the Customer or the Personnel of such contractors.

2. Prices and Payment Terms

(a) The Price is the price stated in the Proposal. If the price for any Goods is not stated in a Proposal, then the Price is, at the Supplier’s sole discretion:

(i) the price stated on an invoice provided by the Supplier to the Customer with respect to the Goods supplied; or
(ii) the Supplier’s current price for the Goods at the date of delivery of the Goods according to the Supplier’s current list of prices for Goods provided by the Supplier to the Customer, as amended by the
Supplier from time to time; or
(iii) the price stated in a quotation given by the Supplier to the Customer, provided that the Customer accepts the quotation by written notice to the Supplier within 30 days after the date that the quotation is      given.

(b) The Price is subject to rise and fall, withdrawal, correction or alteration by the Supplier at any time before acceptance of the Proposal by the Customer.

(c) The Supplier may, at its discretion, increase the Price if any of the following occurs which causes the Supplier’s costs of manufacturing, sourcing, delivering, constructing or installing the Goods or of otherwise completing its obligations under the Contract to be increased:

(i) the Customer requests that the quantity, quality, nature, dimensions or any other aspects of the Goods be changed, and the Supplier agrees to that request;
(ii) the quantity, quality, nature, dimensions or any other aspects of the Goods are changed for any other reason, including due to any change to or any error, inaccuracy or omission in the Customer
Information;
(iii) there is a change in the scheduled time/s for supply of the Goods, for any reason;
(iv) a Force Majeure Event occurs;
(v) any additional work becomes necessary in order to Supply the Goods due to the occurrence or discovery of any conditions at, on or affecting the Site that were not reasonably anticipated by the Supplier
and/or that are outside of the Supplier’s reasonable control, including, but not limited to, weather and climatic conditions, breakdown or unavailability of machinery, plant, equipment or vehicles, underground
and soil conditions and underground or concealed services, rods, beams, pipes or wiring; and
(vi) there is any increase in the cost to the Supplier of labour, materials or components used in manufacturing or supplying the Goods,
and the increase in the Price may be included in the next invoice issued by the Supplier and must be paid by the Customer in accordance with clause 2(e).

(d) Unless otherwise stated in the Proposal, Prices include the costs of cartage and delivery to the Customer.

(e) The Customer must pay the Price to the Supplier:
(i) with respect to Goods:
(A) 5% of the Price must be paid as a deposit at the time that the Proposal is made;
(B) 45% if the Price must be paid before the Supplier orders materials included in the Goods; and
(C) 50% of the Price must be paid before the Goods are delivered; and
(ii) with respect to Services, the Customer must pay the Price within the time specified in the Supplier’s invoice, which will be issued to the Customer after the Services have been delivered.

(f) If the Customer fails to pay the Price in accordance with these Terms, the Supplier may stop delivery of Goods to the Customer, payment becomes immediately due for all Goods provided to date, and the Customer must pay all such amounts to the Supplier on demand.

(g) Without limiting any other rights or remedies available to the Supplier, if the Customer fails to pay an amount that is due and payable on or before the due date, then the Customer must pay interest to the Supplier on the overdue amount at the rate of 2% per month, calculated daily up to and including the date on which the overdue amount is paid in full.

(h) The Customer must not at any time or for any reason withhold any amount that is due and payable to the Supplier pursuant to these Terms or reduce any such amount or set off against any such amount any amount that the Customer believes or asserts is payable to it by the Supplier.

3. Risk, Passing of Title and Delivery

(a) If the Proposal states the terms of delivery, then those terms of delivery apply to that Proposal. Otherwise, subject to the other provisions of the Contract, the Supplier will commence the supply of the Goods as soon as reasonably practicable and will make reasonable endeavours to complete delivery of the Goods within the period indicated by the Supplier, if any. The Supplier is not liable to the Customer for delay in delivery or supply or for non-delivery of Goods.

(b) Goods supplied by the Supplier are at the Customer’s sole risk immediately on the earliest of delivery to the Customer, just prior to the Goods being loaded onto a vehicle for delivery, or on collection of the Goods from the Supplier by the Customer or a carrier or other third party nominated by the Customer. Where the Goods include Services, delivery of the Services occurs at the time of performance of the Services. If the Customer requests Goods to be delivered to an unattended Site, then the Goods are deemed to be delivered when they are left at or outside of that Site,

(c) The Supplier is not obliged to effect any insurance to cover the Goods or any other property.

(d) The title and property in the Goods passes to the customer on the later of the time when the Price for the Goods is paid to the Supplier in full, and the time when no other sums are outstanding by the Customer to the Supplier on any account whatsoever.

(e) The Supplier may, at its absolute discretion, accept part only of a Proposal and/or make part deliveries of any order, and any delay or failure to deliver any Goods does not invalidate, cancel or terminate the agreement between the Supplier and Customer with respect to any other Goods.

(f) The Customer represents and warrants to the Supplier that the Customer has relied entirely on its own enquiries and evaluation and assessment of the Goods when deciding to purchase the Goods.

(g) The Customer is deemed to have accepted the Goods on delivery unless particulars of any claim are notified to the Supplier in writing within 7 days after delivery of the Goods.

4. Proposals

The Customer cannot cancel or vary a Proposal without the prior written approval of the Supplier, which the Supplier may withhold in its absolute discretion. The Supplier reserves the right to revise and amend the Price in its absolute discretion if the Supplier agrees to vary a Proposal.

5. Site and Installation

(a) If the Customer pours a concrete floor inside or outside of a structure comprised in the Goods, the Customer is solely responsible for ensuring that appropriate barriers and protections are placed between the concrete floor and the wall cladding of the structure.

(b) The Supplier will not undertake the actual installation or dismantling of Goods or equipment in connection with the Goods unless specified in the Proposal or otherwise agreed between the Supplier and Customer.

(c) The Customer must ensure that the Supplier is given free and clear access to the Site at all times necessary for the Supplier to supply the Goods including any access to power and facilities required by Supplier. The Customer represents and warrants to the Supplier that it is the registered proprietor of the Site or, where it is not, that it has been granted the right and authority by the registered proprietor of the Site to grant access to the Site to the Supplier and to permit the Supplier to supply the Goods.

(d) The Customer is solely responsible for and must ensure that the access to the Site is capable of bearing the weight of laden trucks, equipment, and other vehicles, goods, plant and equipment as are deemed necessary by the Supplier.

(e) The Customer must ensure that any structures or land to which the Goods will be affixed or on which the Goods will be installed or constructed are able to safely bear the weight of the Goods. If the Supplier considers that for any reason it is unsafe to install or construct the Goods, then the Supplier may suspend the supply or installation of the Goods until such time as the Supplier is satisfied that it is safe to install or construct the Goods, and clause 10 will apply.

(f) Clauses 5(g) to 5(m) (inclusive) apply if the Goods include installation Services.

(g) The Customer must at its own cost do all things necessary to ensure that the Site is adequately prepared and is safe for the performance of the Services, including by undertaking any preliminary works or preparation specified in the Proposal. This obligation includes, but is not limited to, doing all of the following:
(i) making the Site clean, level, prepared, free from obstructions and easily accessible;
(ii) ensuring that soil bearing pressure is greater than or equal to 150kPa;
(iii) ensuring that skin friction is greater than or equal to 15 kPa;
(iv) ensuring that a bored pier design is used, except for pad footings for mezzanine floors or concrete panels;
(v) ensuring that there is up to 300mm of uncontrolled fill; and
(vi) ensuring that locations on the Site where digging will occur are free from obstructions, such as rock, underground services, and concrete.

(h) If the Customer fails to comply with clause 5(c) or 5(g) then the Supplier may charge the Customer for any costs incurred by Supplier in correcting the condition of the Site so that the Supplier can undertake the Services, including, but not limited to, the cost of any additional concrete required due to fill, rock or other obstructions, and the Customer must pay those costs to the Supplier in accordance with clause 2(e)(ii).
(i) The Customer must at all times and at its own cost comply with all Statutory Requirements relating to workplace health and safety that apply to the Site and the performance of the Services.
(j) The Customer acknowledges and agrees that the Supplier has notified it of the disruption that the Services will cause to the quiet enjoyment of the Site and of any neighboring land until Services are
completed. The Customer acknowledges and agrees that it has notified all tenants, users, occupiers and neighbours of the Site of the disruption that the Services will cause to their quiet enjoyment of the
Site and the neighbouring land until the Services are completed. The Customer must indemnify the Supplier from and against any Loss suffered or incurred by the Supplier arising directly or indirectly from or
in connection with:
(i) any complaint, claim or action brought by any tenant, user, occupier, visitor or neighbour to or of the Site; and
(ii) the Supplier’s presence at the Site and its performance of the Services.

(k) Unless otherwise stated in the Proposal, the Customer must, at its own cost, seek, obtain and maintain any Authorisations that are required for the Supplier to perform the Services and for the Customer or any other person to use or occupy the Services.

(l) Where the Supplier agrees to obtain, effect or maintain an Authorisation, the Customer must provide to the Supplier all Customer Information that the Supplier needs in order to obtain, effect and maintain that Authorisation, and the Customer represents and warrants that all such Customer Information is true, accurate and complete in all respects, is not misleading and does not contain any omissions.

(m) Prior to the Supplier commencing the Services at the Site, the Customer must notify the Supplier of the precise location of all underground services on the Site and clearly mark the same. In this clause, ‘underground services’ includes, but is not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water amins, irrigation pipes, telephone cables, fire optic cables, oil pumping mains and any other underground services or structures that may be located at the Site.

6. Customer Information and Design

(a) The Customer represents and warrants that:
(i) all Customer Information provided to the Supplier for the purposes of the Supplier providing Goods is true, accurate and complete in all respects, is not misleading and does not contain any omissions; and
(ii) the use of such Customer Information by the Supplier will not infringe the Intellectual Property of any person.

(b) The Supplier is not obliged to review or confirm the accuracy, completeness, sufficiency or fitness for purpose of any of the Customer Information.

(c) The Supplier is not liable to the Customer for any Loss or for any defect, error, omission or deficiency in any Goods that is caused by, arises from or is in connection with:
(i) any Customer Information being untrue, inaccurate or misleading or containing any omissions; or
(ii) the Supplier complying with any instructions given by the Customer with respect to the design Services.

(d) If, as a result of Customer Information being inaccurate, incomplete, incorrect, misleading or otherwise not complying with clause 6(a), the scope, nature, quantity, quality or characteristics of the Goods must be changed, the Supplier may suspend the supply of the Goods or terminate the Contract, and clause 10 will apply.

7. Force Majeure

If a Force Majeure Event occurs or is discovered by the Supplier then the Supplier’s obligations under the Contract are suspended during the continuation of the Force Majeure Event and the time within which the Supplier must supply or deliver Goods or complete its Services (as applicable) will be deemed to be extended by the reasonable time needed for the Supplier to overcome the Force Majeure Event, as determined by the Supplier in its absolute discretion.

8. PPSA

(a) Defined terms in this clause have the same meaning as given to them in the PPSA.
(b) To the extent that the arrangement documented in these Terms constitutes a Security Interest:
(i) this clause 8 applies;
(ii) the Security Interest is created in, and the Customer grants to Supplier a Security Interest in:
(A) all Goods previously supplied by Supplier to the Customer, if any;
(B) all Goods that will be supplied in the future by Supplier to the Customer; and
(C) all proceeds received by the Customer in relation to the Goods, if any,
and a Financing Statement may be registered on the Register.

(c) The Customer acknowledges that the creation of, and granting of, the Security Interest gives rise to remedies of repossession, retention and/or sale of the Goods in accordance with the PPSA or otherwise where Supplier seeks to enforce the Security Interest.

(d) To the extent permitted by law, the Customer waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to Supplier.

(e) To the extent permitted by law:
(i) nothing in sections 130 to 143 of the PPSA will apply to this Agreement or the Security Interest under this Agreement; and
(ii) the Customer waives its rights as they are set out in all the following sections of the PPSA: 95,118, 121, 123 and 129.

(f) The Customer must ensure that all third parties who may from time to time take or come into possession of the Goods are advised of Supplier’s Security Interest in such Goods.

(g) Without limiting any other rights or remedies available to the Supplier, in the event that any monies remain unpaid after falling due for payment:
(i) the Supplier may, at its discretion, at any time and without notice (notwithstanding any prior failure to exercise such rights) retake possession of the Goods supplied by it and for such purpose the
Customer hereby irrevocably authorizes the Supplier, and all persons authorised by it on their behalf, to enter the premises upon which the Goods are located, for the purpose of so retaking possession of the
same;
(ii) the Customer holds and agrees to hold the proceeds of any sale, lease or other dealing with the Goods on trust for the Supplier in a separate bank account with a bank which does not (and will not in the
future) provide finance to the Customer; and
(iii) the value of all Goods retaken by the Supplier pursuant to this clause 8 may, at the Supplier’s absolute discretion, be assessed by the Supplier (whose decision shall be conclusive) and if this occurs the
Customer must (in addition to any other monies owing by the Customer to the Supplier) pay to the Supplier on demand the difference between the Price of all Goods retaken and the assessed value of those
Goods, less the Price or part of the Price (if any) paid by the Customer for those Goods.

9. Intellectual Property

(a) The Supplier owns all Intellectual Property in the Goods, and will own all Intellectual Property that is created, developed, modified or obtained by either party in the course of the provision of the Goods and any Services.

(b) If the Supplier provides any Intellectual Property to the Customer, the Supplier grants to the Customer a non-exclusive, non-transferable and non-sublicensable licence to use that Intellectual Property solely for the purpose of using and maintaining the Goods.

(c) The Customer must not otherwise use, duplicate, modify, develop, transfer, register or seek to register, adapt, or otherwise deal with or profit from the Intellectual Property of the Supplier in any way without the Supplier’s prior written consent, and then only to the extent of that consent.

10. Termination

(a) Without prejudice to any other right or remedy available to the Supplier, whether arising under the Contract or otherwise at law, the Supplier may terminate the Contract or suspend the supply of Goods immediately by written notice to the Customer if any one or more of the following occurs:
(i) the Customer breaches the Contract and fails to remedy that breach to the satisfaction of the Supplier within 7 days after receiving notice of that breach from the Supplier; or
(ii) the Customer becomes or is declared insolvent or bankrupt, is unable to pay its debts as and when they fall due, enters in receivership, liquidation or administration, is subject to an application to wind up
the Customer, has a controller appointed over all or part of its assets or enters into a compromise or arrangement with any of its creditors.

(b) The Supplier may terminate the Contract or cancel the supply of particular Goods at any time before the Supplier has commenced the manufacture or delivery of the Goods by giving written notice to the Customer. If this occurs, then the Supplier will refund to the Customer the Price paid by the Customer for Goods that have not yet been delivered, less any sums owing to the Supplier from the Purchaser with respect to Goods already delivered.

(c) When a Contract is terminated or a Proposal is cancelled, for any reason other than pursuant to clause 10(b), the Customer must pay to the Supplier the Price for Goods already delivered or ready to be delivered and Services already performed as at the date of termination or cancellation (as applicable), plus the cost of any materials ordered by the Supplier from a third party that were to be incorporated into the Goods and for which the Supplier is obliged to pay a third party.

(d) Where the supply of Goods is suspended, for any reason, the Supplier may charge the Customer for the Supplier’s costs of demobilizing from the Site and, when the supply of Goods recommences, the Supplier’s costs of remobilizing to the Site and recommencing the supply of the Goods. The Customer must pay these costs in accordance with clause 2(e)(ii).

11. Liability of Supplier

(a) To the full extent permitted by law, the Supplier makes no warranty or representation that the Goods will be of any particular quality, will achieve any particular results or will be fit for any particular purpose, and all warranties whether implied or otherwise that are not set out in these Terms (unless they are expressly provided in writing by Supplier to Customer) are excluded and the Supplier is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for any Loss suffered or incurred by the Customer that is caused by, arises from or is in connection with the Goods, any actual or alleged defect in the Goods, the delivery or provision of Goods or Services by the Supplier, failure or delay by the Supplier to deliver the Goods, or any breach of these Terms or the Proposal by the Supplier.

(b) If the Supplier’s liability cannot be excluded pursuant to these Terms then, to the extent permitted by law, the Supplier’s liability to the Customer is limited to, at the Supplier’s absolute discretion:
(i) in relation to Goods:
(A) replacing of the Goods or supplying equivalent goods; or
(B) repairing the Goods; or
(C) paying the cost of replacing the Goods or of repairing the Goods; and
(ii) in relation to Services:
(A) supplying the Services again; or
(B) paying the cost of having the Services supplied again.

(c) The Customer cannot return to the Supplier any Goods that were purchased, manufactured or machined or cut to size in accordance with the Customer’s specifications.

12. Indemnity

(a) To the extent permitted by law, the Customer must indemnify and keep indemnified the Supplier from and against any Loss the Supplier may suffer or incur, directly or indirectly, that is caused by, arises from or is in connection with any one or more of the following:
(i) any breach of these Terms by the Customer or its Personnel;
(ii) any personal injury, illness or death of any person and/or any damage to, loss of, or loss of use of any real or personal property that is caused by, arises from or is in connection with the act, omission or
negligence of the Customer or its Personnel;
(iii) any actual, alleged or threatened infringement of the Intellectual Property of the Supplier that is caused by, arises from or is in connection with the act, omission or negligence of the Customer or its
Personnel;
(iv) any claim brought or threatened against the Supplier with respect to actual or alleged infringement of the Intellectual Property of a third party that is caused by, arises from or is in connection with
Customer Information, the use of the Customer Information by the Supplier, and/or the act, omission or negligence of the Customer or its Personnel;
(v) any underground services (within the meaning of clause 5(m)), not being precisely located where notified or marked by the Customer; and
(vi) any action that the Supplier takes pursuant to clause 8.

(b) It is unnecessary for the Supplier to incur an expense, make a payment or mitigate its loss before enforcing a right of indemnity pursuant to the Contract.

13. Dispute Resolution

(a) If a difference or dispute between the parties arises in connection with the subject matter or interpretation of the Contract (“Dispute”), either party may give the other a written notice of Dispute identifying and providing details of the Dispute (“Dispute Notice”).

(b) Within 7 days after a Dispute Notice is given, representatives of each of the parties having authority to bind the parties must meet and attempt to resolve the Dispute in good faith within the next 7 days.

(c) If a Dispute is not resolved by negotiation in accordance with clause 13(b), then the parties must refer the Dispute to mediation within 30 days, and must seek to resolve the Dispute in good faith by mediation within 30 days after the Dispute has been referred to mediation. The mediator will be a mediator agreed by the parties or, in the absence of agreement, a mediator appointed by the president of the Law Institute of Victoria. The costs of the mediation will be borne equally by the parties.

(d) Neither party may commence legal proceedings in respect of a Dispute before the procedure in this clause 13 has been complied with, except that the Supplier may commence legal proceedings where it is a matter for an urgent injunction or declaratory relief or where the Dispute concerns the enforcement of any payment due from the Customer to the Supplier.

14. General

(a) Each party represents and warrants to the other party that it has the right, power and capacity to enter into and perform the Contract, that it has taken all corporate action and obtained all authorisations necessary to enter into the Contract, and that the Contract creates valid and binding obligations on it.

(b) These Terms may only be amended in writing and signed by the Supplier.

(c) If there is any inconsistency between these terms and the Proposal, then the Proposal prevails over these Terms to the extent of the inconsistency.

(d) The Supplier may set off against or deduct from any amount that the Supplier owes to the Customer, whether pursuant to a Contract or otherwise, an amount equal to any amount that the Supplier asserts that is owed to it by the Customer or the amount of any claim that the Supplier asserts that it is entitled to make against the Customer.

(e) The Supplier may assign, transfer or subcontract any of its rights and obligations under the Contract to any other person by giving written notice to the Customer. The Customer must not assign or transfer any of its rights or obligations under the Contract without the Supplier’s prior written consent.

(f) The Customer must not give any instructions or directions to the Supplier’s Personnel without the Supplier’s prior consent.

(g) The relationship between the Supplier and the Customer is that of independent contractors. Nothing in a Contract evidences or creates any relationship of employment, principal and agency, joint venture or partnership between the Supplier and the Customer.

(h) No failure or delay by the Supplier to exercise any right or remedy, whether arising pursuant to a Contract or otherwise at law, on any one or more occasions acts as a waiver of that right or remedy or otherwise prevents the Supplier from exercising that right or remedy on any other occasion. A waiver of any such right or remedy is only effective if it is in writing and signed by the Supplier.

(i) No provision of these Terms will be interpreted or applied against the rights or interests of the Supplier solely on the basis that the Supplier drafted or prepared these Terms.

(j) If any part of these Terms is found to be void, invalid or otherwise unenforceable, then that part of these Terms will be deemed to be superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible. To the extent that this is impossible, that part of these Terms is severed from these Terms to the extent that it is void, invalid or otherwise unenforceable and the remainder of these Terms continue in full force and effect.

(k) The Contract is governed by the laws of Victoria, Australia and the parties hereby submit to the non-exclusive jurisdiction of the courts of Victoria. In so far as the Vienna Convention for the International Sale of Goods might otherwise apply to the Contract, it is excluded.

December 6, 2021