Trading Terms and Conditions

Sventek Cranes & Rigging Trading Terms & Conditions as at 28 August 2023 and are subject to change without notice.

1. DEFINITIONS AND START DATE

1.1.1. This Agreement is made between Sventek Cranes & Rigging Pty Ltd ACN 653 452 003 ABN 39 653 452 003 (“the Supplier”) and the persons/businesses/companies noted in the Trading Account Application (“the Account Application”) as the Customer on the date that the Account Application is signed on behalf of the Customer.

1.1.2. This Agreement is comprised of the Account Application and these Trading Terms and Conditions and the current Rate Card.

1.1.3. In this Agreement the following definitions and rules of construction apply:

(a) "ACL" means Schedule 2 of the Competition and Consumer Act 2010 otherwise known as the Australian Consumer Law;

(b) "consumer" is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under this Agreement;

(d) “Goods” means any goods provided as a part of the Goods/Services

(e) “the Price” means the Price as notified by the Supplier to the Customer for the provision Goods/Services as set out in this Agreement from time to time;

(f) “Quotation” means any quotation provided by the Supplier to the Customer for the provision of the Goods/Services

(g) "GST" means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;

(h) "PPSA" means the Personal Property Securities Act 2009 as amended;

(i) an obligation imposed by this Agreement upon more than one person binds them jointly and severally;

(j) the use of one gender includes other genders and the use of the singular includes the plural;

(k) he term "person" includes an individual, or a firm, corporation, or association (whether incorporated or not);

(l) a reference to a recital, clause, schedule or annexure is a recital, clause, schedule or annexure of or to this Agreement;

2. AGREEMENT TO SUPPLY

2.1.1. The Supplier shall supply the Goods/Services to the Customer at the Price in accordance with this Agreement.

2.1.2. The Price is exclusive of GST unless otherwise indicated and exclusive of all other taxes or duties.

2.1.3. The Supplier reserves the power:

(a) to decline to accept any order from the Customer;

(b) to sell or continue to provide similar Goods/Services direct to other persons who may be competitors of the Customer;

3. OBLIGATIONS OF THE CUSTOMER

3.1. Place Orders in Writing

3.1.1. The Customer shall place orders with the Supplier in writing wherever possible.

3.2. Acceptance of Goods – Claim Period

3.2.1. The Goods/Services may only be returned if they are damaged, faulty or not as ordered. The Customer shall return such Goods in the condition that they were supplied and the Customer shall:

(a) advise the Supplier of the damage, fault or other issue in writing within forty-eight (48 hours of delivery of the Goods/Service.

(b) return the Goods which are damaged, faulty or not as ordered to the Supplier within seven (7) days of the date of delivery. The cost of the return freight shall be paid by the Supplier.

3.2.2. In the event, that the Customer fails to comply with paragraphs 3.2.1 or 3.2.1(a) the Customer shall not be entitled to make any claim against the Supplier and shall pay the full price of the invoice for the Goods/Services.

3.3. Site Access and Delivery

3.3.1. Where the Supplier is required to come onto property to deliver or provide the Goods/Services, the Supplier shall ensure that there is access to the property sufficient for the Supplier to complete its obligations without delay or the imposition of any additional costs.

3.3.2. The Customer shall ensure that any property onto which the Supplier must come to deliver or provide the Goods/Services is complaint with all relevant laws, regulations and rules in relation to occupational health and safety.

3.4. Risk & Liability

3.4.1. The Customer shall ensure that the Supplier is made aware of any special requirements pertaining to the provision of the Goods/Services and that the Supplier may rely upon the integrity of the information supplied to it.

3.4.2 The Customer shall ensure that any specifications provide in relation to the Goods/Services are correct and accurate to the required standard.

3.4.3. The Customer shall ensure that the ground upon which the Goods/Services are to be provided are suitable for that purpose.

3.4.4. The Customer acknowledges that the Supplier shall not be liable for any loss or damage or for consequential loss or the damage of any kind arising out of the supply of the Goods/Services.

3.5. Payment of Accounts

3.5.1. The Supplier may require a deposit to be paid at the time the order is placed by the Customer.

3.5.2. The Customer shall pay the Supplier in full for the Goods/Services in accordance with the Payment Terms whether or not any dispute exists between the Customer and the Supplier about the amount required to be paid by the Customer under this Agreement.

3.5.3. In the event of a dispute existing between the Supplier and the Customer about the amount required to be paid by the Customer under this Agreement, the Supplier may require, as a pre-condition to any attempt to resolve the dispute or the filing of any defence to litigation that the Supplier nominate a solicitor to hold the amount claimed by the Supplier but in dispute in trust as a stakeholder for the parties until the dispute is settled. Upon such request being made by the Supplier, the Customer shall pay any amount claimed by the Supplier to that solicitor’s trust account.

3.5.4. Where the Supplier has been provided with a credit card or direct debit authority on behalf of the Customer, the Supplier shall be authorised to use that authority to arrange for payment of any amounts due under this Agreement.

3.5.5. To avoid doubt, terms relating to payment of accounts shall survive termination of this Agreement.

3.6. Dealing with Supplier Representatives

3.6.1. The Customer shall:

(a) disclose all dealings with persons employed or engaged by the Supplier other than any transactions directly between the Customer and the Supplier in accordance with this Agreement;

(b) not provide any money, gift or inducement to any persons employed or engaged by the Supplier or to any other person at their request without the consent in writing of a director of the Supplier.

3.7. Customer Representatives

3.7.1. Unless the Customer specifies in writing that only certain individuals have the authority to deal on the Customer’s behalf, the Supplier may rely on any representation by any person that they are authorised to deal on behalf of the Customer.

4. OBLIGATIONS OF THE SUPPLIER

4.1. Maintain the Price

4.1.1. The Supplier shall change the Price only in the following circumstances and shall advise the Customer of any revised price which will be binding on the Customer:

(a) in the event of an increase in the price to the Supplier of any of the components used in supplying the Goods/Services;

(b) due to alterations made at the Customer’s request;\

4.1.2. In the event of any of the events in clause 4.1.1 arising, the Supplier may make a reasonable change in the Price equal to the cost of those events to the Supplier.

4.2. Deliver Goods on Time

4.2.1. The Supplier shall use its best endeavours to deliver the Goods/Services in accordance with the Delivery Arrangements.

4.2.2. The Supplier shall advise the Customer of a revised date for delivery and the Customer shall not be entitled to cancel or alter any order unless the delivery is late by one month or more.

4.2.3. In the event that the Customer is unable to take delivery of the Goods as arranged then the Supplier may charge a reasonable fee for redelivery.

4.2.4. The Supplier may deliver the Goods/Services in instalments and invoice each instalment separately.

4.2.5. In the event that any payment under this Agreement is overdue or there is some other default on the part of the Customer, the Supplier may cancel or suspend further delivery of the Goods/Services until the payment is made or the default is rectified and the Supplier shall not be liable for any loss or damage including consequential loss arising as a result of such cancellation or suspension.

4.3. Quality of Goods

4.3.1. The Supplier makes no other representations about the Goods/Services including the fitness of the Goods/Services for a particular purpose other than those made in writing by the Supplier prior to the date of this Agreement.

4.3.2. The Supplier shall ensure that the Goods/Services are of merchantable quality and are similar within reasonable tolerances.

4.3.3. In the event that the Supplier delivers the Goods/Services to the Customer that are damaged, faulty or not as ordered then the limit of the liability of the Supplier shall be to do any of the following at the Supplier’s option:

(a) replace the Goods/Services within a reasonable period;

(b) repair the Goods/Services within a reasonable period;

(c) pay the Customer difference between the cost of supply of the Goods/Services by the Supplier and supply of equivalent Goods by another person.

4.4. Delay

4.4.1. The Supplier shall not be liable for any reasonable delay in supplying the Goods/Services to the Customer.

4.4.2. If inclement weather makes it unreasonable or unsafe for the Supplier to provide the Goods/Services, the Customer shall pay the Supplier the minimum charges for crane, machinery and labour.

4.5. Warranty for Services

4.5.1. If there is any defect in any Service supplied by the Supplier and the defect is reported to the Supplier within seven (7) days of the provision of the Services then the Supplier will remedy the defective Service.

4.5.2. If any defective Services are repaired or altered without the Supplier’s consent, the warranty shall cease and the Supplier shall not thereafter in any circumstances be liable under the terms of the warranty.

4.5.3. For defective Services where the Customer has complied with the conditions of warranty, the Supplier’s liability is limited to repairing the defective Service.

5. DEFAULT

5.1. Notice of Default

5.1.1. Should any party default in this Agreement, the party not in default may give notice in writing to the party in default specifying the default and giving the party in default:

(a) if the default relates to the non payment of monies, seven (7) days, or;

(b) in any other case, thirty (30) days in which to remedy the default.

5.2. Interest Payable on Default

5.2.1. If the default relates to the non-payment of monies, the Supplier shall be entitled to charge interest on all amounts payable at the daily rate of 5% above the amount specified in the Penalty Interest Rate Act (Vic) which, if not paid, shall be added to the amount due to the Supplier on the 1st day of each month and bear interest from that date.

5.3. Costs of Recovery

5.3.1. The Customer shall pay and indemnify the Supplier for all costs incurred by the Supplier in the recovery of any goods or monies owed (including those costs which may be contingent on recovery) by the Customer to the Supplier under this Agreement including debt recovery agents costs, repossession costs, location search costs, process server costs and solicitor costs as billed to the Supplier.

5.3.2. To avoid doubt, clause 5 shall survive termination of this Agreement.

6. TERM & TERMINATION

6.1. Termination

6.1.1. This Agreement shall continue unless terminated in accordance with this Clause.

6.1.2. The Supplier may terminate this Agreement at any time (including where an order has been placed and accepted by the Supplier) by giving notice in writing to the Supplier and advising of the date on which this Agreement ends.

6.1.3. The Customer may terminate this Agreement by giving notice in writing to the Supplier and obtaining the written consent of the Supplier to the termination in which case the Agreement ends on the date that the consent of the Supplier is given or, otherwise ends after the expiration of the Termination Notice Period.

6.1.4. In the event of any of the following circumstances applying to the Supplier, the Customer may elect to terminate this Agreement with immediate effect by giving notice in writing to Supplier:

(a) a default notified in accordance with clause 5 above remaining unremedied;

(b) the appointment of a Trustee in Bankruptcy, Liquidator, Receiver, Receiver and Manager or any other official management;

(d) a mortgagee, debenture holder, or other chargee taking possession of any property either in person or by an agent;

(e) a change in the ownership or control of a party;

(f) the occurrence of any event or circumstance which in the opinion of the Supplier has or will detrimentally affect the financial position of the Customer or the Customer's ability to repay any payments made under this Agreement as they become due;

6.1.5. Upon termination, the following shall occur:

(a) the Supplier shall provide an invoice to the Customer for any Goods/Services not already invoiced and shall provide a statement for invoices outstanding

(b) all monies payable under this Agreement become immediately due and payable.

7. TITLE, SECURITY & RISK

7.1. Retention of Title

7.1.1. The Goods shall remain the sole and absolute property of the Supplier as legal and equitable owner until such time as all money due to the Supplier has been paid to the Customer but shall be at the Customer's risk from the time of delivery to it;

7.1.2. The Customer acknowledges that it is in possession of the Goods as bailee for the Supplier until such time as they are delivered to a purchaser under the terms of this Agreement;

7.1.3. The Customer's right to possession of the Goods shall cease if it does anything or fails to do anything which would entitle a receiver to take possession of any assets or which would entitle any person to present a petition for the winding up of the Customer;

7.1.4. The Supplier may for the purpose of examination or recovery of the Goods enter upon any premises where they are stored or where they are reasonably thought to be stored;

7.1.5. The entire proceeds of the Goods shall be held in trust for the Supplier and shall not be mingled with any other money paid into any overdrawn bank account and shall at all times be identifiable as the Supplier's money;

7.1.6. The Customer warrants that it is not at the time of entering into this Agreement insolvent and knows of no circumstances which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.

7.1.7. To avoid doubt, terms relating to retention of title shall survive termination of this Agreement.

7.2. Personal Property Securities Act

7.2.1. Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.

7.2.2. For the purposes of the PPSA:

(a) terms used in this clause 7 that are defined in the PPSA have the same meaning as in the PPSA;

(b) these Terms are a security agreement and the Supplier has a Purchase Money Security Interest in all present and future Goods supplied by the Supplier to the Customer and the proceeds of the Goods;

(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and,

(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by the Supplier on the Personal Property Securities Register.

7.2.3. The security interest arising under this clause 7 attaches to the Goods when the Goods are collected or dispatched from the Supplier's premises and not at any later time. Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.

7.2.4. To the extent permitted by the PPSA, the Customer agrees that:

(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on the Supplier will apply only to the extent that they are mandatory or the Supplier agrees to their application in writing; and

(b) where the Supplier has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.

7.2.5. The Customer must immediately upon the Supplier's request:

(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and

(b) procure from any person considered by the Supplier to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Supplier may at any time require.

7.2.6. The Supplier may allocate amounts received from the Customer in any manner the Supplier determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by the Supplier.

7.2.7. The Customer hereby provides the Supplier with a security interest over all its all present and after-acquired property to secure payment for the Goods

7.2.8. The Customer hereby provides the Supplier with a Power of Attorney under Part XIA of the Instruments Act 1958 insofar as the Customer appoints the Supplier to be its attorney and authorises the Supplier to do on its behalf anything that the Customer may lawfully authorise an attorney to do in relation to execution of any documents to give effect to the Supplier's security interest as a secured party under the PPSA and to ensure that the Supplier's interest is perfected, attached and registered on the register in accordance with the provisions of the PPSA to ensure that the Supplier has a valid security interest, a Purchase Money Security Interest and that the Supplier has the greatest priority available to it under the PPSA. The Customer warrants that the Terms have the effect of a deed.

7.3. Charge

7.3.1. If Customer is an individual, if any amount is overdue, the Customer agrees to charge his/her real and personal property to secure the indebtedness of the Customer to the Supplier, and authorizes the Supplier to lodge a caveat or register the charge on the Personal Property Securities Register until the overdue amount is received in full by the Supplier. The Customer shall also be liable for all costs incurred by the Supplier arising from this clause on an indemnity basis.

7.3.2. If Customer is a company, if any amount is overdue, the Customer agrees to grant a fixed and/or floating charge over its assets in favour of the Supplier and irrevocably authorises the Supplier to register the charge and the Supplier’s interest in the charge with the Personal Property Securities Register. The Customer shall also be liable for all costs incurred by the Supplier under this clause on an indemnity basis.

7.4. Risk

7.4.1. Risk in the Goods passes to the Customer when the Goods are collected or dispatched from the Supplier's premises.

7.5. Insurance

7.5.1. The Customer shall be responsible for whatever insurance cover it requires at its own expense.

8. PRIVACY

8.1. Credit Information that may be provided to a Credit Reporting Agency

8.1.1. The Supplier may give information about the Customer or any associated person of the Supplier (“me/us”) to a credit reporting agency before, during or after the provision of credit to me/us for the following purposes:

(a) to obtain a consumer credit report about me/us, and/or

(b) to allow the credit reporting agency to create or maintain a credit information file containing information about me/us.

8.1.2. This information is limited to:

(a) identity particulars - name, sex, address and the previous two addresses, date of birth, name of employer, and drivers license number;

(b) my/our application for credit or commercial credit - the fact that I/we have applied for credit and the amount; the fact that Supplier is a current credit provider to me/us;

(d) advice that my/our loan repayments are no longer overdue in respect of any default that has been listed;information that, in the opinion of the Supplier I/we have committed a serious credit infringement, that is, acted fraudulently or shown an intention not to comply with my/our credit obligations;

(e) dishonoured cheques - cheques drawn by me/us for $100 or more which have been dishonoured more than once.

8.2. Assessment of Commercial Credit Application

8.2.1. I/we agree that Company may obtain a consumer credit report containing information about me/us from a credit reporting agency for the purpose of assessing my/our application for commercial credit.

8.3. Disclosure to Guarantor

8.3.1. I/we agree that Company may give to a person who is currently a guarantor, or whom I/we have indicated is considering becoming a guarantor, a credit report containing information about me/us for the purpose of the guarantor deciding whether to act as guarantor, or Company keeping an existing guarantor informed about its guarantee.

8.3.2. I/we understand that the information disclosed can include a credit report and any other information about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to disclose under the Privacy Act including a credit report.

8.4. Overdue payments

8.4.1. I/we agree that Company may obtain a consumer credit report about me/us from a credit reporting agency for the purpose of collecting overdue payments relating to commercial credit owed by me/us.

8.5. Exchange of Credit Worthiness Information

8.5.1. I/we agree that Company may exchange information about me/us to my/our credit providers including those named in a consumer credit report issued by a credit reporting agency:

(a) to assess an application by me/us for credit

(b) to notify other credit providers of a default by me/us

(c) to exchange information with other credit providers as to the status of my/our credit facility with Company where I/we are in default with other credit providers

(d) to assess my/our debt worthiness.

8.5.2. I/we understand that the information exchanged can include anything about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act.

8.6. Privacy Amendment (Private Sector) Act 2000

8.6.1. I/we understand that under the requirements of the Privacy Amendment (Private Sector) Act 2000, Company will ensure that all credit and personal information obtained about me/us will be appropriately collected, used, disclosed and transferred and will be stored safely and protected against loss, unauthorised access, use, modification or disclosure and any other misuse. I/we also understand that such information will be made available for viewing or amendment by me/us upon request to Company.

9. AUSTRALIAN CONSUMER LAW

9.1.1. Notwithstanding any other clause in these Trading Terms and Conditions (“these Terms”) , if the Customer acquires Goods or Services as a consumer for the purposes of the ACL:

9.1.2. nothing in these Terms excludes, restricts, or modifies any consumer guarantee, right or remedy conferred on the Customer by the ACL that cannot be excluded, restricted or modified by agreement ("Non-Excludable Guarantee");

(a) to the maximum extent permitted by law, Seller's liability for breach of a Non-Excludable Guarantee is limited, at Seller's option, to:

i. in the case of Goods, the replacement of the Goods or the supply of equivalent Goods, the repair of the Goods, the payment of the cost of replacing the Goods or of acquiring equivalent Goods, or the payment of the cost of having the Goods repaired; or

ii. in the case of Services, the supplying of the Services again or the payment of the cost of having the Services supplied again;

(b) if Seller provides any warranty against defects in goods or Services, Seller is required to provide the following statement (which must be read subject to clause 11.1(b)):

Our Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, the Customer is entitled:
to cancel the Customer's service contract with the Seller; and
to a refund for the unused portion, or to compensation for its reduced value.

The Customer is also entitled to choose a refund or replacement for major failures with Goods.

If a failure with the Goods or a service does not amount to a major failure, the Customer is entitled to have the failure rectified in a reasonable time. If this is not done the Customer is entitled to a refund for the Goods and to cancel the contract for the service and obtain a refund of any unused portion.

The Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods or Services.

10. GENERAL

10.1. Entire Agreement

10.1.1. This Agreement constitutes the entire Agreement between the parties and supersedes all previous communications, representations, inducements, undertakings or arrangements between the parties.

10.2. Severance

10.2.1. This Agreement is to be interpreted so that it does not infringe against the Acts of any Parliament of Australia or any regulations made under those Acts. If any provision is invalid or not enforceable, the remaining provisions which are self-sustaining and capable of separate enforcement shall continue in force.

10.3. Amendment

10.3.1. Any amendment to this Agreement must be in writing and signed by the parties.

10.4. Privacy and Credit Information

10.4.1. In accordance with section 18K (1) (c) of the Privacy Act 1988 (Cth) or any similar legislation, the Customer authorises the Supplier to use any information supplied by the Customer for the purposes of assessing the creditworthiness of the Customer including the obtaining a report from any credit reporting agency.

10.4.2. The Supplier may exchange information about the Customer with any credit providers or credit reporting agencies,

10.5. Trust Assets

10.5.1. where the Customer Is a Trustee of a Trust, the Customer warrants that the assets of the Trust shall be available to meet payment of any monies due and owing to the Supplier.

10.6. Notices

10.6.1. Any notice to be given under this Agreement shall be in writing and is deemed duly given if it is:

(a) left at that other party’s address;

(b) sent by pre-paid mail to that other party’s address; or

iii. transmitted by email to that other part

10.6.2. Any notice given to a party is deemed duly given and received:

(a) when delivered (in the case of it being left at that party’s address);

(b) on the third business day after posting (in the case of it being sent by pre-paid mail); or

(c) on the day of transmission by email, if a business day, or, if not a business day, on the next business day (in the case of being transmitted by email).

10.7. Change of Customer Information or Ownership

10.7.1. The Customer shall notify the Supplier within 14 days of any change of ownership, change in address or alteration in shareholding or directorship.

10.8. Account Fees

10.8.1. If the Customer provides the Supplier with a payment that is subsequently dishonoured, the Customer shall be liable for a dishonoured payment fee as set out in the Account Application.

10.8.2. Without prejudice to any other rights of the Supplier, if there is any amount which is overdue, the Customer shall be liable for account keeping fees as set out in the Account Application.

10.8.3. To avoid doubt, this term shall survive termination of this Agreement.

10.9. Agreed Use

10.9.1. The Customer forfeits any rights it may have against the Supplier if the Goods are used in a way they were not intended for, or they are altered without the Supplier’s consent.

10.10. Reservation of Rights

10.10.1. All rights not specifically and expressly granted to the Customer by this Agreement are reserved to the Supplier;

10.11. Receipt

10.11.1. The receipt of money by either of the parties shall not prevent either of them from questioning the correctness of any statement in respect of any money.

10.11.2. To avoid doubt, this term shall survive termination of this Agreement.

10.12. Building and Construction Security of Payment Act 2002 (Vic)

10.12.1. If the Supplier has supplied either building work or construction work, or building work or construction work related goods and service, and is entitled to a progress payment from the Customer, the Supplier may serve upon the Customer a payment claim which satisfies all the requirements as per ss14(2) & 14(3) of Building and Construction Security of Payment Act 2002 (Vic) (“the Act”).

10.12.2. The Customer, if served with a payment claim by the Supplier, may reply to the claim by providing a payment schedule to the Supplier.

10.12.3. The payment schedule to be provided by the Customer shall satisfy all requirements as per s15(2) of the Act.

10.12.4. If the Supplier serves a payment claim on the Customer, and the Customer does not provide a payment schedule to the Supplier within ten (10) business days after the payment claim is served, the Customer becomes liable to pay the amount claimed by the Supplier.

10.12.5. If the Customer provides the Supplier with a payment schedule within ten (10) business days of being served with the payment claim, then if the Supplier wishes to refer the matter to adjudication, it must do so within ten (10) business days of receiving the payment schedule.

10.12.6. If paragraph 7.5.4 herein applies and the Customer has not paid the Supplier the amount claimed, the Supplier is entitled to exercise its rights as per s16(2) of the Act, which may be to recover the unpaid amount in any court of competent jurisdiction, to make an adjudication application or to serve a notice to suspend providing the Services.

10.13. Security Arrangements

10.13.1. The Customer agrees that it shall arrange for the proper execution of the Security Documents as set out in the Account Application to secure the performance of the Customer of this Agreement.

10.13.2. In the event of a change of ownership where directors guarantees have been given, the outgoing directors shall remain liable for all outstanding debts owing by the Customer to the Supplier. The Supplier may in its absolute discretion release any guarantor in the event of a change of ownership or resignation of director provided that suitable replacement guarantees are provided and that all amounts owing to the Supplier are paid in full or the release is given.

10.14. Force Majeure

10.14.1. Both parties will be released from their respective obligations in the event of national emergency, war, prohibitive governmental regulations or if any other cause beyond the reasonable control of the parties renders performance of the agreement impossible whereupon:

(a) all money due to the Supplier shall be paid immediately; and

(b) the Customer shall forthwith cease to carry on the business provided that this clause shall only have effect at the discretion of the Supplier except where such event renders performance impossible for a continuous period of 12 calendar months.

10.15. The Supplier's Right to Assign

10.15.1. This Agreement and all rights under it may be assigned or transferred by the Supplier without the consent of the Customer.

10.16. Waiver

10.16.1. The failure by the Supplier to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.

10.17. Time of the Essence

10.17.1. Time is of the essence in this Agreement in all respects (whether any extension of time or other indulgence has been given by one party to the other or not) and any breach of a time limit by one party will give the other parties the right to terminate this Agreement.

10.17.2. To avoid doubt, this term shall survive termination of this Agreement.

10.18. Governing Law

10.18.1. This Agreement is to be governed by the laws of the State of Victoria, Australia.