Terms Of Service

DEFINITIONS & INTERPRETATION

The following definitions apply in these conditions:

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

Buyer: the person, firm or company who purchases the Goods from the Company.

Company: Geaves Surface Solutions Limited (ABN 99 601 144 923), incorporated and registered in Australia as a foreign company (overseas) whose registered office is at Level 8, 90 Collins Street, Melbourne VIC 3000 and which has its operations based in England and Wales.

Conditions or conditions: means these Terms of Service, which the Buyer agrees to be bound by, when entering into the Contract and which are available on the Company’s website, as amended from time to time by the Company.

Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, which incorporates these conditions.

Default Rate means a rate of interest set at 8% above the Reserve Bank of Australia (RBA) cash target rates at the beginning of periods 1 January -30 June & 1 July -31 December.

Delivery Point: the place where delivery of the Goods is to take place under condition 12.

Event of Default means any of the following on the part of the Buyer:

committing any material or persistent breach of these conditions;
repudiating or, or, in the reasonable opinion of the Company, evincing an intention to repudiate, these conditions;

if the Buyer is a company, undergoing a change of shareholder or director, without the prior written consent of the Company;

misleading the Company in any material way; and/or
an Insolvency Event occurring in respect of the Client.

Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

GST has the same meaning given to that expression in the GST Law.

GST Law has the same meaning given to that expression in the GST Act.

Insolvency Event means in respect of a party:

where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
the party is otherwise unable to pay its debts as and when they fall due.

PPSA means the Personal Property Securities Act 2009 (Cth).

Security Interest means:

any security for the payment of money or performance of the Buyer’s obligations including a mortgage, charge, lien, pledge, trust or power, or title retention agreement;
a security interest as defined in the Personal Property Securities Act 2009 (Cth); or
any document to grant or create anything referred to in either paragraphs i or ii of this definition and any other thing which gives a creditor priority to any other creditor with respect to any asset or an interest in any asset.

Specification: means any specification for the Goods including but not limited to any related plans, designs, drawings, colours, text and logos.

APPLICATION OF TERMS

Subject to any variation under condition 3 the Contract shall be on these conditions to the exclusion of all others (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification, industry practice, regular course of dealings, or other document).
These conditions apply to the Company’s sale of any Goods and any variation to these conditions shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company when entering into the Contract.
Each individual order or acceptance of a quotation for Goods by the Buyer from the Company, in any form shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
No order placed by the Buyer, or quotation given by the Company shall be deemed to be accepted by the Company until:
1. a written acknowledgement of order is issued by the Company (in the form of a sales order of acknowledgment or otherwise); or
2. the Company delivers the Goods to the Buyer;
3. or the Company otherwise indicates to the Client, through whatever format, that the order has been accepted;

(whichever is the earlier) at which point, a Contract will be formed, for the purpose of these conditions.

The Buyer warrants that the terms of its order and any applicable Specification are complete and accurate and not misleading in any way. The Buyer agrees and acknowledges that the Company relies on the information provided by the Buyer and where this is inaccurate, incorrect, inadequate or misleading, the Buyer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company arising from a breach of this warranty and which will become a debt due and payable by the Buyer, to the Company. The Company may, in their discretion, elect to replace the Goods, to refund the Buyer, or otherwise to take any other action the Company determines (acting reasonably).
Any quotation is valid for a period of 30 days, provided that the Company has not previously withdrawn it and subject to condition 30.

DESCRIPTION

The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order pursuant to clause 5. Where the Buyer has specified that the Goods shall be of certain Specifications, the Buyer acknowledges that this is, subject to:
1. reasonable commercial variation where agreed in writing by the Company;
2. availability of materials and labour (if applicable) required for the Goods; and
3. availability of the Goods.
All samples, drawings, descriptive matter, and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are indicative only and issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample. The Goods are subject to natural variations which may change their final colour or finish.

DELIVERY

Any dates specified by the Company for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates are so specified, delivery shall be within a reasonable time.
Subject to the other provisions of these conditions the Company shall not be liable for (and the Buyer holds the Company harmless) for any direct, indirect or consequential loss or damage, however so arising (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence or delays due to supply issues of third parties, including delivery companies), for failure to deliver the Goods by the date expected, nor shall any delay entitle the Buyer to terminate or rescind the Contract unless the Company provides the written consent.
The Buyer will provide an address for delivery and agrees that:
1. they will do all things reasonably required by the Company, or third party delivery service, safe, suitable and unrestricted access to the property;
2. they will indemnify the Company against any loss arising from events occurring while gaining access to the Buyers delivery address; and
3. they shall provide, at the Buyer’s expense adequate and appropriate equipment and manual labour for accepting delivery of the Goods (if needed).
If the Company or a third party delivery service is unable to deliver the Goods for any reason (including due to the Buyer’s breach of clause 12, or failure to provide documents, licences or authorisations):
1. risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
2. the Goods shall be deemed to have been delivered; and
3. the Company or the third party delivery service provider may store the Goods until delivery or collection, whereupon the Buyer shall be liable for all related costs and expenses on an indemnity basis (including, without limitation, storage and insurance) and which will become a debt immediately due and payable by the Buyer to the Company.
If the Goods are damaged during delivery, the Company may, in their discretion, elect to replace the Goods, to refund the Buyer, or otherwise to take any other action the Company determines (acting reasonably).
If delivery has not taken place after 20 business days the Company may at its option resell or destroy the Goods without prejudice to the Buyer’s obligation to pay all costs pursuant to these conditions .
The Company may deliver the Goods by separate instalments or at separate times. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract and these conditions.
Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
The Buyer shall not be entitled to reject the Goods if the Company delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the order invoice on receipt of notice and evidence from the Buyer that the wrong quantity of Goods was delivered.

POSTAGE & TRANSIT

The Company shall pack the Goods suitably for delivery and arrange for freight, postage, insurance and delivery (including obtaining any necessary clearances or approvals from relevant authorities) to the Buyer.
The Buyer is responsible for any and all costs, pursuant to clause 18.

NON-DELIVERY

The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 3 working days of the date when the Goods would in the ordinary course of events have been received.
Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

RISK/TITLE

The Goods are at the risk of the Buyer from the commencement of loading of the Goods at the Company’s place of business.
Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
1. the Goods; and
2. postage and transit;
3. any other Expenses;
4. all other sums which are, or which become due to the Company from the Buyer on any account.
Until ownership of the Goods has passed to the Buyer, the Buyer shall:
1. hold the Goods on a fiduciary basis as the Company’s bailee;
2. store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
4. grant the Company a Security Interest in relation to the Goods; and
5. maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
The Buyer’s right to possession of the Goods shall terminate immediately if the Buyer suffers an Insolvency Event, or the Buyer encumbers or in any way charges any of the Goods.
The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in clauses 28 to 30 shall remain in effect

PRICE

Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s quotation in Australian Dollars (AUD), US Dollars (USD) or any other currency, as agreed by the parties in writing, subject the following:
1. The Company reserves the right to adjust the exchange rate to the rate in force at the date of delivery.
2. The price for the Goods may include value added tax and all costs or charges in relation to packaging, loading, unloading, carriage, insurance and postage and transit costs pursuant to clauses 18 and 19 (collectively referred to as Expenses), all of which amounts the Buyer shall pay in addition as and when demanded by the Company.

PAYMENT

Subject to condition 34, payment of the price for the Goods and Expenses is due, as and when advised by the Company in writing and on terms acceptable to the Company, in the Company’s discretion.
Time for payment shall be of the essence and is due within 5 business days after receipt of an invoice from the Company (unless otherwise advised). The Company reserves the right to amend the timing and amounts of payments required.
No payment shall be deemed to have been received, and the Company is not liable for any payments made, until the Company has received cleared funds in their bank account.
Payments are non-refundable, notwithstanding that there may be variations or cancellations made to the Contract.
All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
No set-off or deduction:
1. All amounts payable under or in connection with these conditions must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under these conditions (unless otherwise required by law).
2. If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with these conditions to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.
Interest:
1. If the Buyer fails to pay any sum payable by it under these conditions to the Company at the time and otherwise in the manner provided in these conditions, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly.
2. Interest will accrue from day to day and will be payable on demand.
3. The payment of interest by the Buyer to the Company in respect of any late payment under this clause 38 is in addition to any other remedies that the Company may have in respect of such late payment.
GST
1. Definitions regarding GST

In this clause 39:

expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;
any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 39; and
any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 39.

Consideration is exclusive of GST
1. Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 39.
Receiving Party to pay additional amount
1. If GST is imposed on any supply made under or in accordance with this agreement, the recipient of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this agreement.
Fines, penalties and interest
1. The amount recoverable on account of GST under this clause 39 by the Providing Party will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 11.
Reimbursement
1. If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with this agreement, the amount must be reduced by the amount for which the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar offset.
Adjustment events
1. If, at any time, an adjustment event arises in respect of any supply made by a party under this agreement, a corresponding adjustment must be made between the parties in respect of any amount paid to the Providing Party by the Receiving Party pursuant to clause 39iii and payments to give effect to the adjustment must be made and the Providing Party must issue an adjustment note.

CANCELLATIONS & VARIATIONS

The Company must provide their prior written consent to any cancellations or variations, which can be given or withheld in the Company’s absolute discretion.
Cancellation:
1. Where the Buyer’s order is cancelled by the Buyer, the Buyer is liable for, and indemnifies the Company against, any Losses incurred by the Company a result of the cancellation, including, but not limited to direct costs, and loss of profit from other orders foregone as a result of the scheduling of the order which is subsequently cancelled.

If the Buyer cancels the order, after the Company has already ordered materials for Goods, then the Buyer is liable for the Company’s cost of such materials, which the Company is entitled to sole legal title and ownership of and may collect any goods from the Clients delivery address.

Variation:
1. A variation agreed to by the Company constitutes a new quote.

A revised quote issued by the Company in respect of the requested variation supersedes the original quote.

If the revised quote only specifies the variation costs, the quote for those variation costs will be in addition to the immediately preceding quote.

The Company has an automatic extension of time for the provision of the Goods equal to the delay caused by the variation.

Company Cancellation or Variation:
1. If the Company needs to cancel or vary the quote, the Company will endeavour to provide the Buyer with notification in writing as soon as reasonably possible.

The Buyer is responsible for any costs and Expenses, reasonably incurred by the Company in cancelling or varying the Quote pursuant to this clause 43 (except to the extent incurred for the Company’s convenience).

INTELLECTUAL PROPERTY

To the extent that the Goods are to be manufactured in accordance with the Buyer’s Specification or otherwise in accordance with the Buyer’s instructions, the Buyer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Buyer’s Specification. This clause shall survive termination of the Contract.

QUALITY

Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company (if possible, at the Buyers cost).
Australian Consumer Law:
1. All information, specifications and samples provided by the Company in relation to the Goods are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Buyer or consumers use of the Goods will not entitle the Buyer to reject the Goods upon delivery, or to make any claim in respect of them.
2. The Australian Consumer Law may give to the Buyer certain guarantees. Where liability for breach of any such guarantee can be limited, the Company’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods.
Acceptance of the Goods:
1. If there are any issues with the Goods provided, the Buyer must, within 3 business days of delivery of the Goods:
  1. outline in written detail to the Company what the issues consist of; and
  2. allow the Company 3 business days to respond.
2. The parties irrevocably agree that the assessment by the Company as to the provision of the Goods and whether they are suitable and in accordance with these conditions is absolute and binding on both parties.
3. If the Buyer does not provide the Company with any notification with the time specified in clause 47i, then the Buyer is taken to have unreservedly accepted the Goods in accordance with the Contract, as provided with the Company’s obligations under this agreement deemed to be discharged, and to the extent permitted by law:
  1. The Company shall have no liability to the Customer for loss in respect of any difference between the quote and the Goods provided (except in relation to any defect non-conformity or failure which would not have been apparent upon a reasonably diligent inspection at the time); and
  2. The Buyer irrevocably waives all of its right to reject the Goods referred to on the quote.

LIABILITY & REMEDIES

Indemnity
1. The Buyer shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold the Company harmless from and against, any and all losses that may be suffered by the Company and which arise, directly or indirectly, in connection with any breach of this agreement by the Buyer and/or any negligent or other tortious conduct in the provision of the Goods.
Indemnities continuing
1. Each indemnity contained in these conditions is an additional, separate, independent and continuing obligation that survives the termination of these conditions despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.
Limitation of liability

To the maximum extent permitted by law, the Company and its representatives expressly:

(Disclaimer of warranties) disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Goods, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, the Company and its representatives make no representation, and provide no warranty or guarantee, that:
1. the Buyer will achieve any particular results from the provision of the Goods;
2. the Goods will be error-free or that errors or defects will be corrected or that the Goods will meet the Buyers requirements or expectations; and
(Limitation of liability) limit their aggregate liability in respect of any and all claims for any losses that the Buyer and/or any of its representatives may bring against the Company under these conditions or otherwise in respect of the Goods to the following remedies (the choice of which is to be at the Company's sole discretion):
1. re-supply of the Goods;
2. payment of the costs of supply of the Goods by a third party; or
3. the refund of any amounts paid by the Buyer to the Company under these conditions in respect to the Goods, even if the Company has been advised of the possibility of such losses,

and the Buyer acknowledges and agrees that the Company holds the benefit of this clause 17.3 for itself and as agent and trustee for and on behalf of each of its Representatives..

Remedies for breach

Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of these conditions, that damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, without the necessity of showing actual damage and without any security being required, together with recovery of costs. Any claims asserted by such other party against the first-mentioned party shall not constitute a defence in any such injunction action, application or motion.

ASSIGNMENT

The Company may assign the Contract or any part of it to any person, firm or company.
The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

FORCE MAJEURE

The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.

TERMINATION

Termination for breach
1. The Company may terminate this agreement immediately by notice to the Buyer if an Event of Default occurs in respect of the Client.
2. If the Company commits any material or persistent breach of this agreement, the Client must provide the Company with a notice of breach in writing. If the Company fails to remedy the breach within 20 Business Days after the date of its receipt of such notice, the Client may terminate this agreement with immediate effect upon providing the Company with a further notice of termination in writing.
3. If the Buyer commits any material or persistent breach of this agreement, the Company must provide the Buyer with a notice of breach in writing. If the Buyer fails to remedy the breach within 20 Business Days after the date of its receipt of such notice, the Company may terminate this agreement with immediate effect upon providing the Client with a further notice of termination in writing.
Effect of termination

In the event of any termination of this agreement in any circumstances and for any reason whatsoever:

the Buyer will remain liable to pay all invoices, costs and Expenses accrued up to and including the date of termination, whether or not invoiced prior to the date of termination (for the avoidance of doubt, in the event of any termination of this agreement by the Buyer, including Expenses incurred by the Company for the purchase of those Goods prior to such termination); and
the Company will send to the Buyer a final invoice for the balance of any unbilled invoices, costs and Expenses accrued up to and including the date of termination and clauses 32 to 39 will apply in respect thereof.

Partially completed deliverables
1. Upon the cessation of the Company’s engagement under this agreement, subject to payment of all outstanding invoices, costs and Expenses by the Buyer in accordance with the terms of this agreement, the Company will deliver to the Buyer any and all partially completed deliverables that are included within the Goods and which have been paid for in full by the Buyer.

PPSA

The Buyer hereby irrevocably authorises the Company to:
1. conduct a PPSR search prior to providing the Goods; and/ or
2. register an interest in their personal property on the PPSR register.
In this clause, words and expressions that are not defined in this agreement but that have a defined meaning in the PPSA have the same meaning as in the PPSA.
Information provided by the Buyer
1. The Buyer represents and warrants that all information provided by or on behalf of the Buyer to the Company (including the Clients details, entity name, ACN/ABN and address as set out in this agreement) is correct in all respects. The Buyer must not change any such information without providing the Company with at least 1 month's prior written notice of the change.
Waiver of PPSA rights

The Buyer hereby waives its rights under the PPSA to:

receive a copy of any notice under the PPSA unless the notice is required to be given by the PPSA and contracting out of the giving of the notice is prohibited by Law;
object to a proposal by the Company to dispose of, purchase or retain any of the personal property of the Client in satisfaction of any obligation owed by the Client to the Company; or
receive a statement of account following the sale of any of the customer’s assets.

Enforcement
1. The enforcement provisions contained in this agreement are in addition to any rights available to the Company under the PPSA and apply to the maximum extent permitted by Law.
2. Without limitation to clause 62i or any other provision of this agreement, the parties hereby contract out of sections 125, 129(2), 142 and 143 of the PPSA.

DISPUTE RESOLUTION

Dispute

A party must not commence court proceedings or arbitration relating to any dispute arising from this agreement without first complying with this clause, except:

where a party seeks urgent interlocutory relief; or
where the dispute relates to compliance with this clause 63.

Notice of dispute
1. A party claiming that a dispute has arisen under this agreement must give written notice of the details of the dispute to the other party or parties in dispute.
2. Each party that has given or received notice of the dispute under this clause must within seven (7) days;
  1. designate as its representative in negotiations relating to the dispute a person with authority to settle the dispute; and
  2. use its best endeavours to resolve the dispute, within a further seven (7) days.
3. Resolution

If within 21 days of receipt of notice the parties to the dispute do not either, resolve the dispute, or agree as to:

a dispute resolution technique (for example expert determination or arbitration) and procedures to be adopted;
the timetable for all steps in those procedures; and
the selection and compensation of the independent person required for such technique;

the parties must mediate the dispute in accordance with the Mediation Rules of NSW and the parties must request the to select the mediator and equally share the costs of the mediator’s remuneration.

NON-DISPARAGEMENT

Subject to clause 67, on and from the date of this agreement, each party must not:
1. make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or
2. cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so,

and must take all reasonable steps to prevent its Representatives from doing so.

Clause 66 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must:
1. promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and
2. reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.

GENERAL

Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the laws of Victoria, Australia and the parties submit to this exclusive jurisdiction.
All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post:
1. (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
2. (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
Communications shall be deemed to have been received:
1. if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
2. if delivered by hand, on the day of delivery.
Communications addressed to the Company shall be marked for the attention of the managing director.
The expression “writing” excludes fax, e-mail, or any other form of electronic communications.
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.