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Terms & Conditions of Sale

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1. Definitions

In this Agreement the following words have the following meanings:

Acceptance Period means:

  1. The period stated in the Quotation; or
  2. If no period of acceptance is stated, the period commencing on the date of the Quotation and ending on the date that is seven (7) days after the date of the Quotation.

Acceptance means acceptance of this Agreement in accordance with clause 3.3.

Agreement means the Quotation, these terms and conditions and any deed, contract, agreement, arrangement or understanding (as amended, varied or replaced from time to time) made between the parties.

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

Business Day means a day on which banks are open for business on the Gold Coast in Queensland, other than a Saturday, Sunday or public holiday.

Completion means the date that Down Under notifies the Customer either in writing or by telephone that the Works are complete.

Corrective Works has the meaning given to it in clause 8.7 of this Agreement.

Covid-19 Pandemic means the Covid-19 coronavirus pandemic as established by the World Health Organisation, and includes all regulations, sanctions, travel restrictions, forced closures, lockdowns, self-isolation, quarantine or other pandemic protocols, directions or unforeseen circumstances imposed by any government authority in respect of or in connection to the Covid-19 coronavirus pandemic.

Claim means any claim, cause of action, Liability, demand, action, remedy, suit, injury, indemnity, damage, proceeding, litigation, investigation or judgment whether based in contract, tort, statute or otherwise whether present, unascertained, immediate, future or contingent.

Consequential Loss means but is not limited to one or more of the following:

  1. Loss of bargain;
  2. Loss of revenues;
  3. Loss of reputation;
  4. Indirect loss;
  5. Loss of profits;
  6. Consequential loss;
  7. Loss of actual or anticipated savings;
  8. Lost opportunities, including opportunities to enter into arrangements with third parties;
  9. Loss or damage in connection with claims against the Customer by third parties.

Customer means the customer identified in the Quotation.

Customer Works means works and other matters to be completed by the Customer or its contractors (other than Down Under) (at the Customer’s cost) prior to the Commencement Date, including:

  1. except as expressly included as part of the Works in the Quotation, removal of any existing goods, products, fixtures or fittings that are being replaced with the Goods as part of the Works;
  2. removal or temporary relocation of any existing window coverings, furniture or fixtures to enable Down Under to gain access to the installation area and enable it to undertake the Works;
  3. any other works or matters identified as such in the Quotation or communicated by Down Under to the Customer during the Inspection or as described elsewhere in this Agreement.

Customer Supplied Information means any information in any form supplied or made available to Down Under by or on behalf of the Customer at any time and whether or not contained in the documents comprising this Agreement and includes information regarding the location:

  1. for installation of the Goods at the Premises (including all dimensions, measurements and other related information supplied by the Customer to Down Under);
  2. electrical wiring and water pipes and any other obstructions on or near the vicinity of the area the Goods are to be installed and the Works carried out;
  3. any other thing or item that the Customer knows or ought reasonably be aware of that may cause damage to the Works or create an unsafe environment while the Inspection and/or Works are being carried out.

Deposit means the amount depicted on the Quotation.

Down Under means Down Under Insect Screens & Security Pty Ltd ACN 124 762 456 trading as Down Under Insect Screens & Security.

Estimated Completion Date means the date we indicate to you as the estimated date of completion or the estimated time frame for completion of the Works.

Event of Default means:

  1. if the Customer fails to pay the Price in accordance with this Agreement or fails to pay any other money payable under this Agreement as and when due;
  2.  the Customer breaches a term of this Agreement and fails to remedy that breach within seven (7) days after receiving a written notice from Down Under to do so;
  3. if the Customer has provided misleading, false or inaccurate statements to Down Under which, in Down Under’ opinion, has caused a material effect on its ability to undertake the Works or the Customer’s ability to pay the Price; or
  4. the Customer suffers an Insolvency Event.

Exclusions means:

  1. Customer Works;
  2. Existing Product Removal;
  3. Preparatory Works;
  4. Corrective Works;
  5. Washing or treating windows, seals or frames;
  6. Any other such work the Customer requests Down Under to undertake that is not included as part of the Works .

Existing Product Removal means the removal by Down Under of any existing products (not included in the Quotation) necessary for Down Under to perform the Works.

Force Majeure Event means any occurrence or omission outside a party’s reasonable control, as a direct or indirect result of which the party relying on the event is prevented from or delayed in performing its obligations under this Agreement (other than a payment obligation), and includes:

  1. an act of God or a disaster (whether natural or man-made) including fire, flood, lightning or earthquake;
  2. riot, civil commotion, act of public enemies, national emergency (whether in fact or in Law) or government declaration or direction;
  3. epidemic, pandemic (including the Covid-19 Pandemic) or quarantine restriction;
  4. supply shortage or strike, lock out, stoppage, labour dispute or shortage including industrial disputes involving Down Under’ suppliers.

Guarantee means the deed of guarantee and indemnity attached to this Agreement at Annexure A.

Guarantor means the party identified as the guarantor at Annexure A.

Goods means the goods to be supplied and installed by Down Under to the Customer in connection with the Works as described on the Quotation.

GST Act means A New Tax System (Goods and Services) Tax Act 1999 (Cth).

Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, layouts, trade marks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Inspection means a visual inspection of the Premises which may be carried out by Down Under (at Down Under’s discretion) prior to the commencement of the Works.

Installation Period is the timeframe of 7:00am to 3:30pm Monday to Friday.

Insolvency Event means the occurrence of any one or more of the following events in relation to any party:

  1. if the party is an individual, the party is a bankrupt, or has signed an authority under section 188 of the Bankruptcy Act 1966 (Cth);
  2. an application (other than one that is dismissed within ten (10) Business Days) is made to a court for an order or an order is made, that the party be wound up;
  3. an application (other than one that is dismissed within ten (10) Business Days) is made to a court for an order appointing a liquidator, provisional liquidator, receiver or other administrator in respect of the party or one of them is appointed whether or not under an order;
  4.  a resolution is passed to appoint an insolvency administrator in respect of the party;
  5. the party enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors or it proposes a reorganisation, moratorium or other administration involving any one of them;
  6. the party resolves to appoint an administrator to itself, wind itself up, or otherwise dissolve itself, or gives Notice of an intention to do so, or is otherwise wound up or dissolved;
  7. the party is or states that it is, unable to pay its debts as and when they fall due;
  8. the party takes any steps to obtain protection or greater protection from its creditors under any applicable legislation; or
  9. any secured creditor of the party enforces its security.

Latent Conditions means any physical condition of, underlying to or adjacent to the Premises that could not reasonably be identified during the Inspection or from information provided by the Customer to Down Under prior to the Quotation being prepared and may include (but is not limited to);

  1. electrical wiring and other obstructions on or near the vicinity of the area the Goods are to be installed and the Works carried out;
  2. any other thing or item that may cause damage to the Works or create an unsafe environment while the Inspection and/or Works are being carried out;
  3. changes made to improvements on the Premises after the Inspection;
  4. an uneven or out of square door or window frame (as the case may be).

Law includes any law, whether statute or common law (including the laws of negligence and nuisance and principles of equity), ordinance, regulation, by-law, order or other determination of any government authority or statutory authority and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them.

Liability means any liability or obligation (whether actual, contingent or prospective), including for any Loss irrespective of when the acts, events or things giving rise to the liability occurred.

Loss means any loss, damage, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense) however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Material Affect means any circumstances which come to the attention of Down Under following its Inspection or check measure which, in the reasonable professional judgment of Down Under, requires an increase in the Price.

Party means a party to this Agreement and also includes any party that becomes bound to this Agreement from time to time.

Payment Terms means:

  1. the Deposit payable on the date of Acceptance; and
  2. the remainder of the Price payable upon written notice from Down Under to the Customer that the Works are complete at the Premises; or
  3. where the Works are carried out in stages, by instalments of the Price equal to the cost of Goods installed and Works undertaken per stage, payable on written notice from Down Under to the Customer that each stage is substantially complete at the Premises.

Personnel means Down Under’s employees, agents, contractors and subcontractors..

Premises means the address identified on the Quotation as the ‘Address’.

Preparatory Works has the meaning given to it in clause 6.3 of this Agreement.

Price has the meaning given to it by clause 7.1 of this Agreement.

Progress Instalment means each payment instalment of the Price as required under paragraph (c) of the Payment Terms.

PMSI means a purchase money security interest as defined under the PPSA.

PPSA means the Personal Property and Securities Act 2019 (Cth).

Tax Invoice has the meaning given to the term ‘tax invoice’ in the GST Act.

Term means the period from the Commencement Date until Completion.

Quotation means the quotation for the Works provided by Down Under to the Customer and annexed to these terms and conditions.

Variation Period means a period of twenty-four (24) hours following Acceptance.

Website means the https://downunderscreens.com.au/ website operated by Down Under.

Works means the scope of works outlined in the Quotation identified as ‘Nature of the Works’.

2. Agreement

2.1 This Agreement is between:

  1. Down Under; and
  2. the Customer.

2.2 On acceptance of the Quotation pursuant to clause 3.3 below, the Customer agrees to be bound by the terms of this Agreement.

3. Orders and Acceptance

3.1 Despite anything to the contrary in this Agreement, Down Under may withdraw the Quotation at any time during the Acceptance Period.

3.2 Unless previously withdrawn by Down Under in writing to the Customer, the Quotation remains open for acceptance by the Customer during the Acceptance Period.

3.3 To accept the Quotation, the Customer must execute this Agreement and return the signed Agreement to Down Under.

3.4 If the Quotation is:

  1. withdrawn by Down Under during the Acceptance Period; or
  2. otherwise not accepted by the Customer prior to 5.00pm on the expiration of the Acceptance Period in accordance with clause 3.3 above,

the Quotation will lapse and will no longer be binding on Down Under.

3.5 Once the Customer has accepted the Quotation in accordance with clause 3.3 above, the Customer may not cancel or seek to vary the Goods or the Works or other conditions contained in the Quotation or this Agreement:

  1. other than in accordance with clause 14 of this Agreement; and
  2. without limiting clause 3.5 above, unless the Customer pays Down Under’s reasonable costs of and incidental to the cancellation or variation (including without limitation, the cost of Goods ordered and/or manufactured after Acceptance).

4. Cooling Off Period

4.1 The Customer acknowledges that the Agreement will not be subject to the Cooling Off Period.

5. Customer Obligations

5.1 General obligations

The Customer must:

  1. pay the Price in accordance with this Agreement;
  2. undertake any Customer Works prior to the Commencement Date;
  3. provide Down Under with (at the Customer’s cost):
    1. free and unencumbered access to the Premises (and land or other areas adjacent to the Premises) sufficient (in the reasonable opinion of Down Under) during the Installation Period to enable Down Under to carry out an Inspection (if Down Under considers it necessary) and carry out the Works. The Customer accepts that where Down Under is required to collect keys from (and/or return keys to) a location other than the Premises, Down Under may charge the Customer for its reasonable costs of and incidental to such collection and return (including but not limited to reasonable travelling or call out costs), which may be up to $100 plus GST, and the Customer must pay those costs to Down Under on demand.
    2. any information and assistance reasonably necessary to enable Down Under to carry out the Works; and
  4. (at the Customer’s cost) cooperate and use its best endeavours to give effect to this Agreement;
  5. (at the Customer’s cost) do all acts and provide the Customer Supplied Information reasonably necessary to enable the Down Under to undertake the Works in accordance with this Agreement.

5.2 Premises access

If the Customer or its employees, agent or invitees (as applicable) do not comply with one or more of the conditions in clause 5.1 above the Customer acknowledges and agrees that, without limiting Down Under’ other rights under this Agreement or at Law:

  1. Down Under may suspend performance of the Works until the default is remedied; and
  2. all reasonable additional expenses suffered or incurred by Down Under (including those incurred in connection with the suspension of the Works) are payable by the Customer on demand, in addition to the Price.

6. Customer Works

6.1 The Customer must undertake the Customer Works (at their cost) in accordance with clause 5.1(b) of this Agreement.

6.2 The Customer is solely responsible for all risks and costs relating to, arising from or in connection with the Customer Works.

6.3 Without limiting clause 6.1 and 6.2 above and clause 6.5 below, if Down Under or its Personnel are required to remove or move any existing products, goods, window coverings, furniture or fixtures (‘Items’) to gain access to the area of installation (‘Preparatory Works’) or undertake the Works:

  1. such Preparatory Works are undertaken at the Customer’s risk;
  2. Down Under is not responsible for any damage caused to the Property or Items, except where caused by the negligent or wilful act or omission of Down Under or its Personnel;
  3. all costs associated with the Preparatory Works are payable by the Customer, on demand, in addition to the Price.

6.4 Down Under makes no warranty in respect of the condition or suitability of, and is not liable in respect of or in connection with, the Customer Works or, to the extent permitted by Law, the Preparatory Works.

6.5 The Customer indemnifies Down Under from all Claims and Liability suffered or incurred arising from or in connection with the Customer Works or, to the extent permitted by Law, the Preparatory Works (including but not limited to their suitability, condition, effectiveness and safety).

7. Price

7.1 Price

The Price shall be indicated on the Quotation and:

  1.  will be binding on the Customer upon Acceptance in accordance with clause 3.3 of this Agreement; and
  2. may only be varied where permitted by, and in accordance with, the terms of this Agreement.

7.2 Payment

  1. The Customer must pay the Price to Down Under, without setoff, in accordance with the Payment Terms, in exchange for a valid Tax Invoice(s) from Down Under.
  2. If there is a dispute about the Price or other amount payable under this Agreement, the Customer must not withhold the amount in dispute.
  3. The Price may be increased to include additional amounts payable for variations agreed pursuant to clause 14 (if any) or as otherwise expressly provided in this Agreement.

7.3 Deposit

Upon acceptance in accordance with clause 3.3 above, the Customer must pay the Deposit to Down Under in accordance with the Payment Terms.

7.4 Payment Method

  1. Any amount payable by the Customer under this Agreement must be paid by EFT, cash or cheque. If paid by cheque, the payment shall only be deemed received when cleared funds are received by Down Under.
  2. An additional fee of 1.5% will be applied to any amount other than the Deposit where the Customer makes payment by credit card.

7.5 Overdue amounts

  1. Without limiting any of Down Under’s other rights under this Agreement or at Law, if the Customer fails to pay Down Under pursuant to the Payment Terms, Down Under may charge interest on the overdue amounts at the rate of 4.35% per month, calculated daily.
  2. All interest on overdue amounts shall be calculated from the date the payment was due and owing until the date payment is received by Down Under.

7.6 Deferral of performance

If the Customer does not pay a Progress Instalment as and when it is due in accordance with the Payment Terms, then without limiting any other remedies available to Down Under, Down Under may suspend performance of the Works until the outstanding Progress Instalment is paid.

8. Warranties

8.1 Works

Down Under warrants in favour of the Customer that the Works will be performed in:

  1. accordance with the scope of works contained in the Quotation;
  2. a good and workmanlike manner and in accordance with the terms of this Agreement.

8.2 Warranty

  1. The Goods and Services come with warranties that cannot be excluded by the Australian Consumer Law, as outlined in clause 8.5 below.
  2. Subject to clause 8.2(c) and 8.6 below, Down Under provides a warranty against manufacturing, mechanical or installation defects in normal domestic use, details of which can be found at https://www.downunderscreens.com.au/products/warranty-and-care/. Exclusions apply as detailed in clause 8.6 below.
  3. Where any Goods or component of Goods are not manufactured by Down Under but is covered by a warranty from the manufacturer for a period greater than twelve (12) months, Down Under agrees to assign that warranty to the Customer. Once assigned, to the extent permitted by Law, Down Under will not be bound by nor be responsible for any term, condition, representation or warranty given by the manufacturer of the Goods.
  4. Except as provided under the Australian Consumer Law or as otherwise specifically provided in this Agreement, Down Under do not give any warranty in relation to Goods or Works. If apart from this clause any warranty is provided under any Law or would be implied at Law, that warranty is excluded to the fullest extent permitted by Law.
  5. In the case of second hand Goods or goods supplied by the Customer, the Customer acknowledges that it has had full opportunity to inspect the Goods and that they accept the Goods with all faults and that no warranty is given by Down Under as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Down Under will not be responsible for any Loss to the Goods or Claim caused or arising in connection with the Goods.

8.3 Customer Warranties

The Customer warrants in favour of Down Under that:

  1. All Customer Supplied Information and other material provided by, or on behalf of, the Customer to Down Under and Personnel is true, correct and accurate and is not misleading or deceptive in any way or likely to mislead or deceive (whether by omission or otherwise).
  2. The Customer has not withheld from Down Under any document, information or other fact which is or may power of control which may relate to or impact on Down Under’s ability to properly perform and discharge its obligations under this Agreement.
  3. The use of the Customer Supplied Information by Down Under will not infringe any Intellectual Property Rights of any third party.
  4. The Customer has not relied on any representation, statement or inducement to enter into this Agreement; and
  5. The Customer is the registered owner of the Premises and has full power and authority to commission the Works.

8.4 Acknowledgment

The Customer acknowledges that Down Under is relying on the representations and warranties of the Customer under clause 8.3 in entering into this Agreement.

8.5 Defects

  1. Where the Customer is a consumer within the meaning of the Australian Consumer Law or the Australian Consumer Law otherwise applies to this Agreement, the Goods and Works come with guarantees that cannot be excluded under the Australian Consumer Law.
  2. Under the Australian Consumer Law:
    1. For a major failure with the Goods or Works, the Customer may be entitled to a replacement or refund and for compensation for any other reasonably foreseeable Loss or damage.
    2. For a failure with the Goods or Works that does not amount to a major failure, the Customer may be entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality.
  3. Where the Customer is not a consumer within the meaning of the Australian Consumer Law or the Australian Consumer Law does not otherwise apply to this Agreement, Down Under’s liability in respect of any defect in or failure of the Goods or Works is as contained in clause 11.2 of this Agreement.

8.6 No liability or warranty in certain circumstances

  1. To the extent permitted by Law, Down Under is not liable for any Claim, damage or failure in respect of the Works and/or Goods to the extent such Claim, damage or failure is due to:
    1. fair wear and tear;
    2. the reckless or negligent act or omission of the Customer;
    3. accidents caused, or misuse of the Goods, by anyone other than Down Under or its Personnel;
    4. Latent Conditions;
    5. any difference in colour due to Powdercoat dye batches and Anodising between goods displayed on the Website or as to samples provided to the Customer and the Goods;
    6. improper or unauthorised installation, maintenance and service compliance, use, repairs or adjustments to the Premises by any person other than Down Under or the Personnel;
    7. failure of the Customer to maintain regular service and maintenance of the Goods as specified in the manufacturer’s manual (which can be found on Down Under’s website at https://downunderscreens.com.au/products/warranty-and-care/) or (where service or maintenance requirements are not so specified) such servicing and maintenance as is reasonably required;
    8. as a result of a breach by the Customer of any of the warranties in clause 8.3.
  2. Orders for the manufacture and supply only of Goods:
    1.  will be ordered and manufactured according to the Customer’s own measurements and specifications as notified by the Customer to Down Under;
    2. are ordered and manufactured at the Customer’s risk; and
    3. provided Down Under has complied with its obligations under clause 8.6(b) above, Down Under is not liable for any defect or failure in the Goods, or any damage or Loss caused by the Goods, arising from, as a result of or in connection with the Customer’s providing incorrect or inaccurate measurements or specifications.
  3. The Customer acknowledges and accepts that all Goods are manufactured square and no responsibility can be accepted for openings that are uneven or out of square.
  4. The Customer must pay Down Under on demand as a liquidated debt a reasonable call out fee and any additional reasonable expenses, charges or fees incurred by Down Under in connection with any request for a service call not covered by warranty.

8.7 Corrective Work

  1. Without limiting any other provision of this Agreement, the Customer acknowledges that failure in respect of the Works and/or Goods due to reasons as contemplated by clauses 8.6 above may result in Down Under having to undertake additional corrective work (‘Corrective Work’) (at the Customer’s cost).
  2. Any Corrective Work including any ancillary goods required to carry out the Corrective Work is outside the scope of the Quotation or not covered under any warranty and any costs associated with the Corrective Work is payable by Customer, in addition to the Price.
  3. If Down Under becomes aware of any required Corrective Work, Down Under agrees to follow the procedure in clause 14.2 of this Agreement.
  4. For clarity, Down Under is not:
    1. required to undertake any Corrective Work unless and until the Customer approves the quote for the Corrective Work; and
    2. liable for any costs or expenses incurred due to carrying out Corrective Work and the Customer must pay these costs and charges to Down Under on demand.

9. Completion

9.1 Estimated Completion Date

  1. The Estimated Completion Date is a genuine estimate but is given as an approximate indication only.
  2. Down Under will use its reasonable endeavours:
    1. to undertake the Works at the Premises by the Estimated Completion Date; and
    2. achieve Completion by the Estimated Completion Date,
    3. but is not liable to the Customer for any Claim arising either directly or indirectly from any delay or failure to do so.

9.2 Consequences of delays

  1. Without limiting clause 17.1 of this Agreement, Down Under will not be liable if provision of the Works is prevented or delayed due to any act, omission or default of the Customer or any party under or through the Customer (including but not limited to a failure to provide access to the Premises or to pay the Price pursuant to the terms of this Agreement).
  2. The Customer is responsible for and must pay on demand all expenses, costs, charges and other money incurred by Down Under associated with any delay in provision of the Works due to one or more of the matters described in clause 9.2(a) above.

9.3 Insurance

During the Term, the Customer must keep and maintain adequate insurance to cover any Loss or damage to the Premises from any cause.

10. Title and Risk

10.1 The Premises and any property on or in the Premises (including the Goods) remain entirely at the Customer’s risk.

10.2 The Customer bears the risk associated with the Goods from the time the relevant Goods are delivered to the Premises.

10.3 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery (time being of the essence) notify Down Under if the Goods do not comply with the description in the Quotation. The Customer shall afford Down Under an opportunity to inspect the Goods within fourteen (14) days following delivery if the Customer believes the Goods do not comply with the description in the Quotation.

10.4 If the Customer:

  1. gives notice under clause 10.3 that the Goods comply with the description in the Quotation; or
  2. does not give notice to Down Under within the time frame stipulated in clause 10.3 above,

the Customer is deemed to have accepted that the Goods comply with the description in the Quotation.

10.5 Despite anything to the contrary, the Goods remain the property of Down Under, and ownership in the Goods only passes to the Customer once the Price is paid in full.

10.6 Until ownership of the Goods passes to the Customer in accordance with clause 10.2 above, the Customer must:

  1. maintain the Goods in the Customer’s possession;
  2. keep and maintain the Goods in good working condition and take all reasonable and practicable steps to protect the Goods from damage;
  3. not assign, sell, transfer, change, pledge, encumber or deal with the Goods.

10.7 Without limiting any other right Down Under may have, if the Customer does not pay the Price in accordance with this Agreement, Down Under or any agent of Down Under may (as the Customer’s invitee) enter onto the Premises (or any land or premises where the Goods are situated) and retake possession of the Goods (at the Customer’s cost).

10.8 The Customer releases and indemnifies Down Under in relation to all Claims or Liability suffered or incurred arising from or in connection with Down Under exercising its rights under this clause 10.

11. Limitation of Liability

11.1 Exclusions

  1. The Customer acknowledges and accepts that the Exclusions do not form part of the Works or this Agreement.
  2. Down Under is not liable to the Customer for the Exclusions.
  3. The Customer indemnifies, and will keep indemnified, Down Under from any Claims suffered or incurred arising from or in connection with the Exclusions.

11.2 No Liability for Latent Conditions

The Customer is responsible for, and accepts all Liability in connection with, any Latent Condition and releases and indemnifies Down Under in respect of any Claim or Loss arising from or in any way connected to any Latent Condition.

11.3 Liability limited to Price or re-performance

  1. To the extent permitted by Law, any Liability of Down Under for any Claim however caused (including but not limited to by the negligent or reckless act or omission of Down Under, the Personnel), suffered by the Customer in connection with this Agreement or the Works is limited to (at Down Under’ discretion):
    1. re-performance or correction of the Works; or
    2. that part of the Price already paid by the Customer to Down Under.
  2. The limitations set out in the above clause 11.2(a) is an aggregate limit for all Claims, whenever made.

11.4 Consequential loss

To the extent permitted by Law, Down Under is not liable for any Consequential Loss however caused (including by the reckless or negligent act or omission of Down Under, the Personnel), suffered or incurred by the Customer in connection with this Agreement.

11.5 Seriousness or nature

For clarity, and without limiting clauses 11.2 or 11.4 above, the parties agree that clauses 11.2 or 11.4 apply in connection with a breach of this Agreement, anticipated breach of this Agreement and other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.

11.6 Application to indemnities

For clarity the limitations and exclusions of liability in this clause 11 apply to any Liability of Down Under under any indemnity given by Down Under pursuant to this Agreement.

12. Security

12.1 Definitions

Words and phrases used in this clause 12 that have defined meanings in the PPSA have the corresponding meaning given to them in the PPSA.

12.2 Security for performance

  1. The Customer charges all of their property (including your real property) with their obligations, and all warranties and indemnities given by the Customer, under this Agreement.
  2. The Customer consents to Down Under registering:
    1. a PMSI over the Goods; and/or
    2. a Security Interest over all of the Customer’s present and after acquired property, to secure the performance of the Customer’s obligations (including payment of the Price and compliance with the warranties and indemnities given by the Customer) under this Agreement.

12.3 Discharge

  1. Down Under agrees to discharge and release any caveat, Security Interest and/or PMSI and cause for it to be removed from the PPSR or title to the land (as the case may be) upon the Customer discharging all of the Customer’s obligations under this Agreement.
  2. The Customer agrees to do anything (including obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which Down Under asks and considers necessary for the purposes of:
    1. ensuring that the Security Interest is enforceable, perfected and otherwise effective;
    2. enabling Down Under to apply for any registration, complete any financing statement or give any notification, in connection with the Security Interest; and
    3. enabling Down Under to exercise rights in connection with the Security Interest.

12.4 Statements under the PPSA

Down Under is not required to give any notice, and the Customer waives their right to receive any notice, under the PPSA (including notice of a verification statement or financing change statement) unless the notice is required by the PPSA to be given (even though the parties have waived the right to receive notice).

13. Force Majeure

13.1 Neither party will be in breach of this Agreement or liable for any failure or delay in the performance of its obligations under this Agreement (other than a payment obligation) to the extent that the failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the other party.

13.2 If this Agreement is no longer capable of being performed within a reasonable time after the Commencement Date due to a Force Majeure event or otherwise:

  1. Down Under may terminate this Agreement by written notice to the Customer and this Agreement will be at an end;
  2. both parties must immediately discharge all of their financial and other obligations under this Agreement up to the date of expiration or termination of this Agreement;
  3. Down Under is entitled to remove all its property from the Premises; and
  4. subject to clause 13.2(b) above neither party will have any further Claim against the other except in relation to prior breaches of this Agreement.

14. Variations and Additional Costs

14.1 No obligation to vary

In no circumstances shall Down Under be obliged to depart from the Works except as provided for under the terms of this Agreement.

14.2 Variation procedure

Without limiting clause 3.5 of this Agreement, if the Customer requests and Down Under agrees (or Down Under requires and the Customer agrees) to facilitate a departure from the Work the following procedure will apply:

  1. Down Under will price the cost of the variation (‘Variation Price’);
  2. Down Under will provide the Variation Price to the Customer for the Customer’s consideration prior to commencing any work with respect to the variation requested;
  3. the Customer must, within two (2) Business Days of receipt of the Variation Price notify Down Under in writing as to whether the Customer will proceed with the variation for the Variation Price (‘Acceptance of the Variation Price’); and
  4. If the Customer does not provide Acceptance of the Variation Price as required by the above clause 14.2(c), Down Under is under no obligation to undertake the variation and the Customer releases Down Under from all Claims or Liability in this regard.

14.3 Fee adjustments for variations

If the Customer notifies Down Under of its Acceptance of the Variation Price, the scope and specification of Works will be varied accordingly and the Price will be adjusted as follows:

  1. an increase to the Price as a result of an Acceptance of Variation Price where the work has commenced and for which payment has not previously been made; and
  2.  a decrease in the relevant progress payment in respect of a variation which reduces the Price.

14.4 Latent Conditions or Material Affect treated as variations

  1. If Down Under encounters unforeseen events, circumstances or Latent Conditions:
    1. during an Inspection or check measure; or
    2. in the course of undertaking the Works, which may have a Material Affect on the work required, Down Under will provide the Customer:
    3. with full particulars of the unforeseen event and/or Latent Conditions along with details of the additional work required (‘Additional Works’);
    4. written details of the additional costs and expenses associated with the Additional Works (‘Deemed Price Variation’);
  2. The Customer must, within two (2) Business Days of receipt of the notices contemplated in clause 14.4 above notify Down Under in writing as to whether the Customer will proceed with the Additional Works and pay the Deemed Price Variation.
  3. If the Customer agrees to proceed with the Additional Works and pay the Deemed Price Variation or does not give notice to Down Under within the time stipulated by clause 14.4(b) above:
    1. the Works are deemed to be varied in accordance with the Additional Works notice and the Price varied pursuant to the Deemed Price Variation;
    2. the Customer must pay the Deemed Price Variation to Down Under in addition to the Price, on demand or otherwise in accordance with this Agreement.

14.5 Additional costs borne by the Customer

The Customer must pay (without limitation) to Down Under in addition to the Price, on demand or otherwise in accordance with this Agreement:

  1. the amount of any GST payable by the Customer in exchange for a valid Tax Invoice;
  2. taxes (other than income tax and GST), stamp duty or other statutory charges or levies whether State or Federal payable in relation to the supply of the Works;
  3. legal cost and disbursements on an indemnity basis incurred by Down Under in relation to a breach of this Agreement by the Customer;
  4. all costs, charges, expenses or any other outgoings incurred by Down Under with respect to any variation by the Customer or the Additional Works;
  5. any other costs, fees, charges or expenses described in this Agreement as being payable by the Customer in addition to the Price certain circumstances.

15. Dispute Resolution

15.1 Informal dispute resolution

  1. If the parties to this Agreement are unable to agree on a matter of fundamental importance (‘Dispute’) the parties must meet and use their reasonable endeavours to resolve the Dispute in good faith ten (10) Business Days of the Dispute initially arising.
  2. If the Dispute is not resolved pursuant to clause 15.1(a) above, either party may give notice to the other of their intention to refer the Dispute to mediation.

15.2 Referring Dispute to mediation

  1. Where a party gives notice of its intention to refer a Dispute to mediation, the other party must within ten (10) Business Days of the referral, prepare and provide to the other party a notice setting out its position in relation to the Dispute and its reasons for adopting such a position.
  2. If the parties do not agree within five (5) Business Days of receipt of that notice as to:
    1. the dispute resolution technique and procedures to be adopted;
    2. the timetable for all steps in those procedures; and
    3. the selection and compensation of the independent person required for such technique, then the parties must mediate the Dispute in accordance with the mediation rules of the Australian Commercial Disputes Centre in Sydney, with the mediator to be selected and the mediation organised by the Australian Commercial Disputes Centre or a similar organisation agreed to by all parties.

15.3 Costs

The parties must bear their own costs of dealing with any Dispute and the costs of any expert or mediator will be borne equally by the parties in Dispute.

16. GST

16.1 Interpretation

Any words capitalised in this clause 16 and not already defined in this Agreement have the meaning given to those words in the GST Act.

16.2 Taxable supply

  1. If the provision of the Works made under or in connection with this Agreement is a Taxable Supply, then at or before the time any part of the consideration for the Supply is payable:
    1. Down Under may recover from the Customer an amount equal to the GST payable on the supply (‘GST Amount’); and
    2. the Customer must pay the GST Amount to Down Under on the date the relevant portion of Fee is due or in exchange for a valid Tax Invoice.
  2. For clarity, the GST payable under this clause 16.2 is correspondingly increased or decreased by any subsequent adjustment to the amount of GST owed in respect of the Supply.

16.3 Progressive or Periodic Supply

Where a Supply made under or in connection with this Agreement is a Progressive or Periodic Supply, clause 16.2 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.

17. Termination

17.1 Down Under termination

  1. Upon the occurrence of an Event of Default, Down Under’ may give written notice to the Customer requesting that the relevant Event of Default be remedied by the Customer within seven (7) days after receipt of the notice.
  2. Down Under may:
    1. if the Event of Default has not been remedied within the timeframe stipulated in the notice contemplated by clause 17.1(a);
    2. where the Event of Default is not capable of remedy; or
    3. as otherwise provided for under this Agreement, terminate this Agreement by written notice to the Customer.
  3. Should Down Under terminate this Agreement, termination is taken to occur on the date specified in the written notice of termination or if no date is specified immediately on giving the notice to the Customer.

17.2 Customer termination

The Customer may terminate this Agreement by one months’ written notice to Down Under if Down Under:

  1. commits a material breach of a fundamental term of this Agreement that has a material and adverse affect on the Customer; and
  2. fails to remedy that breach within thirty (30) days of receiving written notice from the Customer requiring Down Under to do so, in which case this Agreement terminates immediately on giving the notice of termination.

17.3 Payments upon termination

  1. Except where this Agreement is lawfully terminated by the Customer due to the unremedied default of Down Under and subject to clauses 17.3(b) and 17.4 below, if this Agreement is terminated prior to Completion:
    1. the Customer must pay to Down Under on demand as a liquidated debt for the full costs of any Goods (or part of the Goods) manufactured as at the date of termination; and
    2. a pro rata amount of the Price reflective of the Work completed by Down Under up to and including the time of termination.
  2. The rights afforded to Down Under pursuant to clause 17.3(a) above are without prejudice and do not limit any other rights or remedies available to Down Under at Law or under this Agreement.

17.4 Effect of termination

On termination of this Agreement accrued rights or remedies of a party are not affected.

17.5 Survival

Any indemnity or any obligation of confidence under this Agreement is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.

18. Personal Guarantee

18.1 The Customer must cause the Guarantor to sign the Guarantee at the same time the Customer signs this Agreement.

18.2 The Customer may terminate this Agreement by giving written notice to the Customer if the Customer fails to comply with clause 18.1.

19. Assignment

Neither party may assign, in whole or in part, or novate their rights or obligations under this Agreement without the prior written consent of the other party.

20. Miscellaneous

20.1 Time of the Essence

Time is of the essence of the Customer’s obligations to pay the Price pursuant to the Payment Terms and to undertake the Customer’s Works.

20.2 Contra Proferentem

The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.

20.3 Waivers

A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

20.4 Governing Law

  1. This Agreement is governed by the laws of Queensland.
  2. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction in that place.

20.5 Counterparts

  1. This Agreement may be executed in any number of counterparts. All counterparts taken together shall be taken to constitute one agreement.
  2. The parties agree that a facsimile copy of a counterpart received from a party shall be regarded as, and deemed to be, an original copy of that counterpart received from that party.

20.6 No merger

The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.

20.7 Relationship

Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

20.8 Entire Agreement

This Agreement contains all the contractual arrangements of the parties with respect to the items to which it relates, and supersedes all earlier conduct (including any agreements in relation thereto) by the parties with respect to those items.

20.9 Facsimile and Email Form

Both parties acknowledge that the original of this Agreement may be in facsimile or email form and agree to accept the facsimile or email as an original which is binding on the parties.

20.10 Electronic Communication

The parties agree and acknowledge that their representatives may communicate utilising electronic communication and the laws governing electronic communication in the relevant state of the party receiving the electronic communication will apply.

20.11 Notices

  1.  A notice, consent, approval or other communication (each a ‘notice’) under this Agreement must be signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and:
    1. delivered to that person’s address;
    2. sent by pre-paid mail to that person’s address; or
    3. transmitted by facsimile or email to that person’s address.
  2. A notice given to a person in accordance with this clause is treated as having been given and received:
    1. if delivered to a person’s address, on the day of delivery if a Business Day, otherwise on the next Business Day;
    2. if sent by pre-paid mail, on the third Business Day after posting; or
    3. if transmitted by facsimile or email to a person’s address and a correct and complete transmission report is received, on the day of transmission if a Business Day, otherwise on the next Business Day.
  3. For the purposes of this clause 20.11 the address of a party, is the address referred to either above in the title of the Agreement or if not referred to in the title of the Agreement then in the Schedule of the Agreement.

20.12 Interpretation

In this Agreement:

  1. a reference to a defined term defined in Schedule 1 is given that meaning;
  2. the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;
  3. a reference to this Agreement includes the agreement recorded by this Agreement;
  4. this Agreement is not to be interpreted against the interests of a party merely because that party proposed this Agreement or some provision in it or because that party relies on a provision of this Agreement to protect itself; and
  5. a reference to a party is a reference to Down Under or the Customer, and a reference to the parties is a reference to both Down Under and the Customer.

20.13 Severance

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

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