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Terms and Conditions of Supply

Terms and Conditions of Supply


1.       Definitions and interpretation

1.1     Definitions

In this Agreement these definitions apply:

Accepted Proposal means Proposal which is signed by the Client as an indication of the Client’s acceptance of the Proposal;

Agreement means in order of prevalence (unless expressly provided otherwise):

(a)    these Terms and Conditions; and

(b)    the terms and conditions of an Accepted Proposal;    

Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) Schedule 2;

Background IP means Intellectual Property owned or licensed by a party before the Execution Date, or developed by a party independently of this Agreement;

Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Australia;

Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise;

Client is the party identified in the Accepted Proposal as the client, and includes its Representatives and its Related Bodies Corporate;

Commencement Date means the date of execution of an Accepted Proposal by both parties;  

Confidential Information means:

(a)    this Agreement and the information within this Agreement;

(b)    information identified as being confidential when it is disclosed by a party;

(c)    all other information disclosed belonging to a party or its Related Bodies Corporate not publicly available at the time of disclosure other than by a breach of this Agreement; and

(d)    information pertaining to the business, property or affairs of the parties or their Related Bodies Corporate, which is the property of that party or its Related Bodies Corporate including business, financial, customer and employee information, supplier information, processes, statements, formulae, trade or business secrets, drawings and data not publicly available at the time of disclosure other than by a breach of this Agreement;

Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Execution Date as a likely result of breach of the Agreement:

(a)    incidental, special, remote or unforeseeable loss or damage;

(b)    loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement;

(c)    costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or

(d)    loss or damage of the nature set out above in clauses (a) to (c) (inclusive) that is incurred or suffered by or to a third party;

Consumer has the meaning given to it in the Australian Consumer Law;

Delivery Point means the place where the Materials are delivered, as specified in an Accepted Proposal;

Fee means the fees for the Materials and/or Services, as specified in an Accepted Proposal;

Force Majeure Event means anything outside the reasonable control of a party regardless of whether it is reasonably contemplated by the parties at the Execution Date as a likely result of breach of the Agreement;

Governmental Agency means any government or any governmental, semi-governmental, fiscal, monetary, judicial or statutory agency, authority, tribunal, commission, body or other entity, with power, authority or jurisdiction in any part of the world;

System (Goods and Services) Act 1999 (Cth), the rate of which is multiplied to any payment; 

Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the occurrence of any event that has a substantially similar effect to the above events;

Intellectual Property means all rights conferred under statute, common law or equity, wherever in the world subsisting, in relation to copyright, trade marks, design or patents, patentable inventions and designs, whether existing now or in the future and whether or not registered or registrable, and includes any rights subsisting in or relating to trade secrets, know how, inventions, discoveries, geographical indications of origin, semiconductor and circuit layouts, programming tools, object code, source code, microcode, mask works, methods, techniques, recipes, formulae, algorithms, modules, libraries and any application for registration or registration of those rights, whether existing at the Execution Date or in the future;

Law means the common law (including equity), current Acts of the Parliament of Australia and related regulations or statutory instruments; 

Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all reasonable legal and other professional costs;

Materials means materials supplied by the Supplier to the Client under this Agreement, as more particularly described in an Accepted Proposal;

Material Breach means these occurrences or events:

(e)    if the Client fails to pay money payable under this Agreement on the due date for payment;

(f)     if the Client fails to perform or observe the provisions of this Agreement to be performed or observed; or  

(g)    the Client suffers an Insolvency Event; 

Payment Timetable means the timetable for payment of the Fee as specified in the relevant Accepted Proposal;

Personnel means an employee, contractor, sub-contractor or agent of a party;

Property means the place at which the Services will be provided, which, if applicable, is identified in an Accepted Proposal;

Proposal means a proposal particularising the Services and/or Material to be supplied by the Supplier provided by the Supplier to the Client for the Client’s consideration;

Related Body Corporate has the meaning given by the Corporations Act 2001 (Cth);

Representative means, in respect of a party, any person acting for or on behalf of the party and includes any director, officer, employee, agent, contractor or sub-contractor of the party;

Services means the services to be provided by the Supplier to the Client under this Agreement, as more particularly described in an Accepted Proposal;

Supplier means MIJA (Geelong) Pty Ltd ACN 101 965 655    ATF the Burke Family Trust t/as Best Design to Life, its Representatives and its Related Bodies Corporate;

Supplier IP means any Intellectual Property brought or required to be brought into existence by or on behalf of the Supplier pursuant to this Agreement or an Accepted Proposal; 

Taxes includes any tax, levy, impost, assessment, deduction, charge, rate, stamp duty or compulsory loan or withholding levied, imposed, assessed or collected by or under any legislation or Governmental Agency, together with any associated interest, penalty, fine, charge and fee or other amount, but excludes GST; 

Term has the meaning given to that term in clause 2;

Terms and Conditions means the terms and conditions outlined on this website, as amended by the Supplier from time to time; and

Variation means a change to an Accepted Proposal.

1.2     Interpretation

In this Agreement:

(a)    no provision of this Agreement is to be construed adversely against a party just because the party prepared it or caused it to be prepared;

(b)    all monetary amounts are expressed in Australian Dollars ($AUD);

(c)    parties must perform their obligations on the dates and times fixed by reference to Melbourne, Victoria.

2.      Term

An Accepted Proposal will commence on the Commencement Date and will continue until the end of any agreed completion period, unless terminated earlier in accordance with this Agreement (Term).

3.      Basis of engagement

(a)    The Supplier is a non-exclusive independent contractor to the Client. Nothing in this Agreement is intended to create an employment or agency relationship between the Supplier and the Client, or any Personnel of the Supplier and the Client.

(b)    This Agreement does not confer any rights or remedies upon any person other than the parties.

4.      Agreement to supply

4.1     General

(a)    These Terms and Conditions apply to all transactions between the Client and the Supplier relating to the supply of Materials and/or Services, and constitute a separate legal agreement in respect of each Accepted Proposal.

(b)    An agreement will be taken to be formed upon the Client accepting the Accepted Proposal. 

(c)    By signing an Accepted Proposal, the Client agrees that the Terms and Conditions will apply to all transactions between the Client and the Supplier relating to the supply of Materials and/or Services.

(d)    The Client must not accept a Proposal if the Client does not agree to these Terms and Conditions or if the Client does not have authority to act on behalf of any party for whom the Client is acquiring the Materials and/or Services.

(e)    The Supplier is under no obligation to provide any Materials and/or Services to the Client unless the Client has signed, and returned to the Supplier, a copy of a Proposal.

(f)     These Terms and Conditions take precedence over terms and conditions contained in any document of the Client or elsewhere.

4.2    Cancellation

(a)    The Supplier may refuse a request to cancel an Accepted Proposal.

(b)    Where an Accepted Proposal is cancelled, the Client agrees to indemnify the Supplier for any Claims and Losses, including Consequential Loss, incurred by the Supplier as a result of the cancellation.

4.3    Variation

(a)    The Client may issue the Supplier a notice to vary an Accepted Proposal (Variation Request).

(b)    The Supplier is under no obligation to accept a Variation Request.

(c)    If the Supplier accepts a Variation Request, it will:

(i)        notify the Client of its acceptance within a reasonable time of receiving the Variation Request; and

(ii)        perform the Variation Request.

(d)    The Client acknowledges:

(i)        a Variation may delay supply of Materials and/or Services; and

(ii)        the Supplier reserves the right to adjust the Fee to account for the Variation.

5.       Materials

5.1     Delivery

(a)    Within a reasonable time of the estimated completion period, the Supplier will deliver the Materials to the Delivery Point.

(b)    The Supplier reserves the right to deliver the Materials by instalments and to invoice the Client for each instalment of Materials delivered where, in the opinion of the Supplier, it is reasonable to do so. Failure by the Client to pay for any instalments will entitle the Supplier to withhold delivery of any remaining Materials.

5.2    Acceptance, defects and return

(a)    Where Client is not a Consumer 

(i)        This clause does not apply to a Client who is a Consumer. 

(ii)        The Client will not have a claim for shortages or defects in respect of any Materials (Defective Materials) unless the Client provides written notice to the Supplier within ten (10) days of delivery, which notice must:

(A)    detail the shortage or defect; and

(B)    identify the provision of this Agreement or the Accepted Proposal with which the Materials are not compliant or have failed to satisfy.

(iii)       The Supplier will, at its option, accept the return of, or give a credit for the Defective Materials where:

(A)    the Client has complied with this clause 5.2(a); and

(B)    the Supplier is satisfied as to the claim by the Client; and

(C)    if the Client elects to have the Materials returned, the Materials are returned to the Supplier in the same condition as when first delivered to the Client.

(iv)      Where Defective Materials are returned under this clause 5.2(a), the Supplier is responsible for collecting the Defective Materials from the place at which they are located within such reasonable time as the Supplier determines.

(b)    Where Client is a Consumer

(i)        This clause applies to a Client who is a Consumer.

(ii)        The Materials come with guarantees that cannot be excluded under the Australian Consumer Law. The Client is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Client is also entitled to have the Materials repaired or replaced if the Materials fail to be of acceptable quality and the failure does not amount to a major failure.

(iii)       If the Client makes a claim under this clause 5.2(b), the Client acknowledges the Supplier will need to assess the Materials before repairing or replacing them, or issuing the Client a refund.

(iv)      The Client is responsible for the initial costs of returning the Materials if they can be posted or easily returned.

(v)       Subject to the Client providing evidence of costs incurred in returning the Materials, if the Supplier concludes the Materials are defective, the Supplier will compensate the Client for costs incurred by the Client in returning the Materials.

(vi)      Before the Client returns the Materials, the Supplier will provide the Client with an estimate of any transport or inspection costs that will apply if the Supplier determines the Materials are not defective. 

5.3       Title

(a)    All legal and equitable title to Materials remains with the Supplier until:

(i)        the Supplier has received payment in full for the Materials; and

(ii)        the Supplier has received payment in full for all money owing by the Client to the Supplier.

(b)    Until the Client makes payment of all monies owed to the Supplier, the Client:

(i)        must keep the Materials physically separate from all other goods of the Client, and clearly identified as owned by the Supplier; and

(ii)        must indemnify the Supplier against any claim arising out of the possession, use or disposal of the Materials by the Client.

(c)    If the Client sells any of the Materials while money is still owing to the Supplier, the Client must keep the proceeds of the sale in a separate account and not mix them with any other funds.

(d)    If the Materials are resold, the Client holds all of the book debts owed in respect of such sales and proceeds on trust for the Supplier. Such part of the book debts and proceeds shall be deemed to equal in dollar terms the amount owed by the Client to the Supplier at the time of the receipt of such book debts.

(e)    Until title in the Materials passes to the Client, the Supplier or its agent will be entitled at any time to require the Client to deliver up the Materials to the Supplier and the Supplier has the right to enter upon any premises where the Materials are located to repossess the Materials (without being liable for any damage caused by doing so).

5.4    Risk

Risk in the Materials will pass to the Client on the earliest of:

(a)    delivery of the Materials to the Delivery Point; or

(b)    delivery of the Materials to a carrier nominated by the Client.  

5.5    Charge over Client’s property

(a)    As security for payment to the Supplier of all moneys payable by the Client, the Client charges in favour of the Supplier the whole of the Client’s undertaking, property and assets (including all of the Client’s legal and beneficial interests in freehold and leasehold property) both current and later acquired.

(b)    The Client irrevocably appoints each Representative as its attorney to do all things necessary to create and register each such charge.

5.6    Security interests

(a)    Terms that are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the same meaning in this clause.

(b)    The Agreement is a security agreement for the purposes of the PPSA.

(c)    The Supplier may register its security interest in all and any Materials under this Agreement.

(d)    The Client must do anything (such as obtaining consents and signing documents) the Supplier requires for the purposes of ensuring that the Supplier's security interest in the Materials charged and, if applicable, a Purchase Money Security (PMSI), has first perfected and is otherwise effected under the PPSA.

(e)    The Supplier may recover from the Client the cost of doing anything under this clause, including, registration fees.

(f)     The Supplier's rights are in addition to and not in substitution for the Supplier's rights under any other law and the Supplier may choose whether to exercise rights under the Agreement and/or under any other law as it sees fit.

(g)    If the Client sells or otherwise disposes of the Materials, the proceeds of such sale or other disposal are the property of the Supplier and must be immediately paid to the Supplier and, until they are paid, will be held by the Client on trust for the Supplier.

(h)    The Client agrees that, if Chapter 4 of the PPSA applies to the enforcement of the Supplier's security interests, the following provisions of the PPSA will not apply to that enforcement:

(i)        section 95, to the extent it requires the Supplier to give a notice to the Client;

(ii)        section 96;

(iii)       section 130, to the extent that it requires the Supplier to give a notice to the Client;

(iv)      subsection 132(3)(d);

(v)       subsection 132(4);

(vi)      section 135;

(vii)      section 142; and

(viii)     section 143. 

(i)     The Client waives its right to receive a verification statement under the PPSA.

(j)     Subject to section 275(7), the Supplier and the Client agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. The Client must do everything necessary on its part to ensure that section 275(6)(a) of the PPSA continues to apply. This clause is for the purposes of allowing the Supplier the benefit of section 275(6)(a) and the Supplier will not be liable to pay damages or any other compensation or be subject to injunction if the Supplier breaches this clause 5.6.

6.      Services

6.1     Obligations of Supplier

The Supplier will perform the Services:

(a)    with due care and skill, with appropriately skilled and qualified Personnel in a timely and professional manner; and

(b)    comply with all relevant Laws and standards.

6.2    Insurance

The Supplier will for the Term maintain all necessary insurances in relation to the Services, as determined by the Supplier in its absolute discretion.

6.3    Third party services

The Client agrees the Supplier is not responsible for the services of any third parties independently engaged by the Client.

7.       Sub-contracting

The Supplier may sub-contract any of its rights or obligations under this Agreement without the Client’s prior written consent. 

8.      Timing

The Supplier will use its reasonable endeavours to deliver the Materials and/or provide the Services in accordance with any timetable outlined in an Accepted Proposal.  Any such timetable is, however, an anticipated timeframe only and the Supplier makes no warranty or representation that the Materials and/or Services will be provided according to that timeframe.

9.      Client obligations

The Client must:

(a)    take all reasonable precautions to protect the Property and contents from damage;

(b)    provide the Supplier with all materials, information and access to the Property required by the Supplier to deliver the Materials and/or provide the Services; and

(c)    at all times fully co-operate with the Supplier to enable the Supplier to deliver the Materials and/or provide Services. 

10.     Fee and invoicing

10.1    Fee

(a)    In consideration of the Supplier supplying the Materials or providing the Services, the Client will pay the Supplier the Fee in accordance with the Payment Timetable.

(b)    Subject to clause 10.1(c), unless an Accepted Proposal expressly states otherwise, the Fee is exclusive of all travel, accommodation and other incidental costs and expenses reasonably incurred by the Supplier in performing its obligations under this Agreement and any changes to third party supply costs or currency fluctuations relevant to the provision of Materials and/or Services under this Agreement (Ancillary Expenses)  The Client agrees to make payment of all Ancillary Expenses to the Supplier in addition to the Fee in accordance with the Payment Timetable.

(c)    The Supplier will obtain the Client’s written consent prior to incurring an expense that exceeds:

(i)        $5,000; or

(ii)        25% of the total Fee.

10.2   Invoices

(a)    The Supplier may provide the Client with an invoice in relation to the Fee and any Ancillary Expenses.

(b)    Unless otherwise provided in an Accepted Proposal, the Client must make payment within fourteen (14) days of receiving the Supplier's invoice.

10.3   Dispute of invoices

(a)    If the Client disputes any invoice issued under clause 10.2, the Client must notify the Supplier of the amount in dispute and the reason for dispute within 14 days of receipt of the invoice. Any amounts not in dispute must be paid in accordance with clause 10.1.

(b)    The parties will resolve any dispute under this clause 10.3  in accordance with clause 15.

(c)    If it is resolved some or all of the amount in dispute should have been paid when due at the time it was invoiced, the Client must pay the amount finally resolved together with interest on that amount calculated in accordance with clause 10.4(a).

10.4   Failure to pay

If the Client does not make payment by the date stated in an invoice, the Supplier is entitled to do any or all of the following:

(a)    charge interest on the outstanding amount at a rate equivalent to the reference rate charged by the Supplier's principal bank, accruing daily;

(b)    require the Client to pay, in advance, for any Materials or Services which have not yet been delivered performed;

(c)    not deliver the Materials or suspend performance of any further Services;

(d)    terminate this Agreement.

10.5    Responsibility for Taxes

(a)    The Client is responsible for all Taxes arising from or relating to this Agreement and must pay:

(i)        Taxes which are imposed on the Supplier, directly to the relevant Government Agency; and

(ii)        Taxes which are imposed on the Client, directly to the relevant Government Agency on behalf of the Supplier, 

(b)    on or before the latest date that the Tax is due for payment without incurring any penalty or additional tax for late payment.

10.6   GST

(a)    The Client acknowledges that the Fee is exclusive of GST. 

(b)    If GST is payable in respect of a supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount equal to the GST payable on the supply (GST Amount). The GST Amount is payable by the recipient in addition to and at the same time as any consideration for the supply, provided the supplier has given the recipient an invoice.

11.       Confidentiality

11.1    Protection of Confidential Information

Each party:

(a)    agrees to keep the other party’s Confidential Information confidential, safe and secure;

(b)    must only use, copy or reproduce the other party’s Confidential Information for the purposes of this Agreement;

(c)    must ensure any person with access to the other party’s Confidential Information through it or on its behalf does not use, copy or disclose that Confidential Information other than in accordance with this Agreement.  

11.2   Disclosure of Confidential Information

Each party must not disclose the other party’s Confidential Information to any person except:

(a)    to its Personnel who need to know the Confidential Information for the purposes of this Agreement;

(b)    as required to be disclosed by Law or the rules of a stock exchange;

(c)    if the other party has given its written consent to the disclosure or use; or

(d)    as permitted by this Agreement.

11.3   Return of Confidential Information

Subject to clause 11.4, each party must, at the other party’s option, return, permanently de-identify or destroy all documents in its possession or control that contain Confidential Information within ten (10) Business Days of termination or expiry of this Agreement.

11.4   Return exceptions

Where a party needs to retain the other party’s Confidential Information for the purpose of:

(a)    complying with any Law;

(b)    litigation;

(c)    internal quality assurance and record-keeping; or

(d)    performing its obligations or exercising its rights under this Agreement,

it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 11.3 promptly after it is no longer required for this purpose.

12.       Intellectual Property

12.1    Background IP

(a)    Each party retains all rights in its Background IP.

(b)    The Client grants the Supplier a non-exclusive, non-transferable, royalty-free, worldwide licence for the Term to use the Client's Background IP to the extent necessary to allow the Supplier to perform its obligations under this Agreement.

12.2   Supplier IP

(a)    The Supplier owns all legal and beneficial Intellectual Property rights in the Supplier IP.

(b)    The Supplier grants the Client a, revocable, royalty-free, non-transferable, personal, non-exclusive licence to use the Supplier IP to the extent necessary to allow the Client to receive, use and otherwise enjoy the full benefit of the Services. 

12.3   Intellectual Property in Material

The Client acknowledges that:

(a)    copyright subsists in the Materials as an original literary work;

(b)    the Supplier or its licensor is the owner of all Intellectual Property in the Materials; and

(c)    it must not copy or otherwise deal with or use the Intellectual Property subsisting in the Materials without the Supplier's prior written consent.

13.    Warranties

13.1   Warranties as to capacity

The Client warrants each following statement is true:

(a)    if a corporation:

(i)        it is validly incorporated;

(ii)        it has taken all corporate action necessary to render this Agreement legally enforceable; and

(iii)       its execution and performance of this Agreement does not breach its constitution, any binding agreement or any Law.

(b)    if trustee of a trust:

(i)        it enters into this Agreement as trustee and in its personal capacity;

(ii)        it has the power under the trust deed to sign this Agreement; and

(iii)       it will not retire as trustee or appoint any new or additional trustee without advising the Supplier.

13.2   General warranties

Additionally, the Client warrants each following statement is true:

(a)    in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement;

(b)    all information provided to the Supplier under this Agreement is true, accurate and complete;

(c)    there is no litigation, arbitration, mediation or administrative proceedings taking place, pending or threatened, to which the Client is a party or to which the Client is reasonably likely to be a party;

(d)    it has disclosed all information which could reasonably be regarded as affecting the Supplier's decision to enter into this Agreement;

(e)    no statement made by the Client leading up to the Commencement Date has been misleading or deceptive in any material respect; and

(f)     it will perform all obligations under this Agreement.

13.3   No warranties in relation to completion

The Supplier provides no warranty that any result or objective can or will be achieved or attained at all by the Client’s acquisition of the Services and/or Materials.

14.     Liabilities and indemnities

14.1   Indemnity

The Client must indemnify the Supplier against all Claims and Losses, including Consequential Loss, incurred or suffered by the Supplier arising as a direct result of:

(a)    any breach of this Agreement by the Client;

(b)    any negligent act or omission of the Client or its wilful misconduct;

(c)    any infringement of the rights of a third party, including Intellectual Property rights, by the Client; and

(d)    breach of a Law by the Client,

except to the extent that the Loss or Claim is directly attributable to the negligence or wrongful act or omission of the Supplier or its Representatives. 

14.2   Limitation on liability

The total aggregate liability of a party to the other party under or in connection with this Agreement in respect of all Claims and Losses will not exceed the Fee paid or payable in the 12 months prior to the Claim or Loss.

14.3   Implied terms 

(a)    Any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by Law.    

(b)    Pursuant to s64A of the Australian Consumer Law, this clause applies in respect of any goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss51 to 53 of the Australian Consumer Law) is limited:

(i)        in the case of goods, to any of the following as determined by the Supplier:

(A)    replacement of the goods or the supply of equivalent goods;

(B)    the repair of the goods;

(C)    the payment of the cost of replacing the goods or acquiring equivalent goods; or

(D)    the payment of the cost of having the goods repaired; and

(ii)        in the case of services, to any of the following as determined by the Supplier:

(A)    the re-supply of the services; or

(B)    the payment of the cost of re-supplying the services.

14.4   Australian Consumer Law

Nothing in this Agreement is intended to limit or exclude the Client’s consumer guarantees under the Australian Consumer Law. 

15.     Dispute resolution

(a)    The parties must use reasonable endeavours to resolve any dispute through negotiation between them.

(b)    If within 10 days, the dispute cannot by resolved following negotiation between the parties, either party may refer the dispute for arbitration.  The parties agree to negotiate in good faith to agree on the appointment of a single arbitrator, or failing agreement as appointed by the President of the Law Institute of Victoria (if all the parties are in Australia) or (where one or more of the disputing parties is not in Australia) to an arbitrator appointed by the Australian Centre for International Commercial Arbitration Court (ACICA).

(c)    The arbitration will be conducted in Australia under the ACICA Rules operating when the dispute is referred to ACICA (the Rules).

(d)    The terms of the Rules are deemed incorporated into this Agreement.

(e)    This dispute resolution clause does not apply where an invoice is outstanding by the Client to the Supplier.

(f)     The Supplier reserves the right to issue debt proceedings against the Client and the Client agrees it is liable for the Supplier's indemnity costs of any proceedings.

16.     Termination

16.1    Termination for cause

The Supplier may terminate this Agreement by notice with immediate effect if the Client:

(a)    commits a Material Breach of the Agreement that is not capable of remedy; or

(b)    commits a Material Breach of the Agreement capable of remedy, and does not remedy that breach within ten (10) Business Days after receipt of notice of the breach.

16.2   Effect of termination

On termination or expiration of this Agreement:

(a)    the parties must return Confidential Information in accordance with clause 11.3; and

(b)    the Client must pay all amounts due under this Agreement.

17.     Notices

(a)    All notices and consents must be in in writing and sent to the email addresses or addresses for notices specified in the Accepted Proposal, or as otherwise agreed.

(b)    Notices may be given by hand, post or by email.

(c)    Notices will be deemed received:

(i)        if hand delivered, at the time of delivery;

(ii)        if sent by post, on the fifth (or seventh, if posted to or from a place outside Australia) day after posting; or

(iii)       if sent by email, once it enters the recipient’s email server, unless the sender receives an automated notification that the email has not been received by the intended recipient, in which case the notice is deemed to not having been received.

18.     Relationship between parties

Unless provided to the contrary in this Agreement, no party is authorised to bind another party and nothing in this Agreement is to be construed as creating an employment, agency, partnership, fiduciary or joint venture relationship between the parties.

19.     Entire Agreement

This Agreement represents the entire agreement between the parties and supersedes all prior discussions, negotiations, understandings and agreements in relation to the Materials and Services.

20.     Assignment

(a)    The Supplier may assign or otherwise deal with all or any part of its rights or obligations under this Agreement at its discretion

(b)    In the event of an assignment under clause 20(a)20(a), the Supplier will notify the Client of the assignment once the assignment has taken place.

(c)    The Client must not assign, novate, sell, transfer, licence, mortgage, charge or otherwise encumber any right or obligation under this Agreement without the prior written consent of the Supplier, which consent must not be unreasonably withheld.

21.     Waiver and variation

A provision of this Agreement, or right, power or remedy created under it, may not be varied or waived except in writing signed by the party or parties to be bound.

22.     Counterparts

This Agreement may be signed in any number of counterparts.  All signed counterparts taken together constitute one agreement.

23.     Rights, powers and remedies

The rights, powers and remedies given in this Agreement are in addition to, and do not exclude or limit, any rights, powers or remedies provided by law or equity.

24.     Severability

If any provision is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid, without affecting the validity or enforceability of the remaining provisions of this Agreement.

25.     Survival

The rights, obligations and indemnities in clause 10.5, clause 11, clause 12, clause 13, clause 14, clause 16.2, clause 17, clause 25 and clause 28 survive termination or expiry of this Agreement.

26.     No merger

On termination or expiry of this Agreement, the rights and obligations of the parties will not merge and any provision not fulfilled remains in force.

27.     Further steps

Each party must, at its own expense, do all things and execute all documents necessary to give full effect to this Agreement and the transactions contemplated by it.

28.    Governing law and jurisdiction

(a)    This Agreement is governed by the Laws in force in Victoria, Australia.

(b)    The parties submit to the exclusive jurisdiction of the courts of Victoria.