1.1 “Agent” means A’Besco Pty Ltd ABN 71 115 768 146 trading as A’Besco Blinds and Awnings,
its successors and assigns or any person acting on behalf of and with its authority.
1.2 “Customer” means the person/s requesting the Agent to provide the Goods & Services as
specified in any invoice, document or order, and if there is more than one person requesting
the Services is a reference to each person jointly and severally.
1.3 “Goods & Services” means all goods and services supplied by the Agent to the Customer at the
Customer’s request from time to time.
1.4 “Incidental Items” means any goods, documents, designs, drawings or materials supplied,
consumed, created or deposited incidentally by the Agent in the course of it conducting or
supplying to the Customer, any Goods & Services under this contract.
1.5 “Price” means the price payable (plus any GST where applicable) for the Goods & Services in
accordance with clause 6 of this contract.
1.6 “GST” means the goods and services tax pursuant to the A New Tax System (Goods and Services
Tax) Act 1999 (Cth) as may be amended from time to time.
2.1 The Customer is taken to have exclusively accepted and is immediately bound by these terms
and conditions if the Customer places an order for, or accepts, any Goods & Services provided
by the Agent.
2.2 These terms and conditions may only be amended with the Agent’s consent in writing and
shall prevail over any other document or purported contract between the Customer and the
Agent, including any purchase order.
2.3 The Customer agrees that the site will comply with any relevant work health and safety laws
and any other relevant safety standards or legislation and shall notify the Agent (prior to
attending) of any potential risk in the site which may pose a safety issue to the Agent and/or
the Agent’s employees, agents or contractors.
- Electronic Transactions Act 2000 (NSW) (“ETA”)
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties
have complied with Section 9 of the ETA or any other applicable provisions of the ETA or any
Regulations referred to in the ETA.
- Errors & Omissions
4.1 The Customer acknowledges and accepts that the Agent shall, without prejudice, is not liable
in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Agent in the formation and/or
administration of this contract; and/or
(b) contained/omitted in/from any literature (hard copy and/or electronic) supplied by
the Agent in respect of the Goods & Services.
4.2 If such an error and/or omission occurs, the Customer shall not be entitled to treat this
contract as repudiated nor render it invalid.
4.3 Fabric, finish and colour choice is a personal preference of the Customer. The Customer is
responsible for any fabric, finish and colour choices despite any advice, recommendation,
information, assistance given by the Agent in relation to Goods & Services and no alteration,
refund or reimbursement for such choices will be entertained.
- Change in Control
5.1 The Customer shall give the Agent not less than fourteen (14) days prior written notice of any
proposed change of ownership of the Customer and/or the site and/or any other change in
the Customer’s details (including but not limited to, changes in the Customer’s name, address,
contact phone or email address/es, or business practice). The Customer shall be liable for any
loss incurred by the Agent as a result of the Customer’s failure to comply with this clause 5.1.
- Price and Payment
6.1 At the Agent’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Agent to the Customer; or
(b) the Agent’s quoted price (subject to clause 6.2) which will be valid for the period
stated in the quotation or otherwise for a period of thirty (30) days, whichever is the
6.2 The Agent reserves the right to change an amount in addition to the Price if a variation is
required by the circumstances in the opinion of the Agent, including but not limited to as a
result of delays by the Customer, rescheduling by the Customer, the need to attend the site on
multiple or additional occasions, restricted access to the site and/or any additional Services
required due to unforeseen circumstances not caused by the Agent including but not limited
to limitations of access to the site, availability of machinery, safety considerations or as a result
of any increase to the Agent in the cost of Goods & Services, Incidental Items and/or labour.
Such items will be shown as variations and invoiced separately. All additional labour is
provided at the hourly rate per installer disclosed on any quote and failing that, at the rate of
$85/hour + GST, whichever is the higher. Invoice/s for variation/s must be paid within five
(5) business days and in any event, prior to attending site, whichever is the earlier.
6.3 At the Agent’s sole discretion, a non-refundable deposit may be required, including for any
6.4 Time for payment for the Goods & Services being of the essence, the Price will be payable by
the Customer on the date/s determined by the Agent, which may be:
(a) at the time of booking of the installation aspect of the Goods & Services;
(b) by way of instalments/progress payments in accordance with the Agent’s payment
(c) the date specified on any invoice or other form issued by the Agent as being the date
for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date
of any Invoice given to the Customer by the Agent, which may be prior to supply,
assembly or installation.
6.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card or by
any other method offered by the Agent.
6.6 The Customer shall not be entitled to set off against or deduct from the Price, any sums owed
or claimed to be owed to the Customer by the Agent nor to withhold payment of any invoice
because part of any invoice is in dispute.
6.7 Unless otherwise stated, the Price does not include GST. In addition to the Price, the Customer
must pay to the Agent an amount equal to any applicable GST the Agent must pay for any
supply by the Agent under this or any other contract for providing the Goods & Services. The
Customer must pay the GST, without deduction or set off of any other amounts, at the same
time and on the same basis as the Customer pays the Price. In addition, the Customer must
pay any other taxes and duties that may be applicable in addition to the Price except where
they are expressly included in the Price.
7.1 At the Agent’s sole discretion, delivery of the Goods & Services shall take place when the Goods
& Services are supplied to the Customer at the site referred to in the relevant proposal,
quotation, order or invoice.
7.2 Delivery of the Goods & Services to a third party nominated by the Customer is deemed to be
delivery to the Customer for the purposes of this contract.
7.3 The Agent may deliver the Goods & Services by separate instalments. Each separate
instalment may be invoiced and paid for in accordance with the provisions in these terms and
7.4 Any time specified by the Agent for delivery of the Goods & Services is an estimate only and
the Agent will not be liable for any loss or damage incurred by the Customer as a result of
delivery being late. However, both parties agree that they shall use reasonable endeavours to
enable the Goods & Services to be supplied at the time and site as was arranged between both
parties. If the Agent is unable to supply the Goods & Services as agreed solely due to any action
or inaction of the Customer, then the Agent shall be entitled to charge a reasonable fee for resupplying the Goods & Services at a later time and date, for wasted labour at the rates
disclosed in clause 6.2 and for any storage costs at cost plus ten percent (10%).
8.1 Notwithstanding the passing of title, all risk in the Goods & Services including any Incidental
Items passes to the Customer on delivery to the site or where clause 9.2 applies.
8.2 The Customer shall be responsible for any additional consumables supplied by the Agent after
delivery of the Goods & Services unless agreed by the Customer and the Agent at the time of
8.3 The Customer acknowledges that in some instances pertaining to stain removal that repeated
applications of treatments may be required. Although the Agent shall take all due care, some
residual fading of fabrics or other porous surfaces may result from such repeated spot
- Care of Items
9.1 The Agent may at its discretion notify the Customer that it requires to store at the site items,
Incidental Items, equipment, products and appliances required for the provision of the Goods
& Services, in which event the Customer shall supply the Agent a safe area for storage and
shall take all reasonable efforts to protect all items so stored from possible destruction, theft
or damage. If any such items are destroyed, stolen or damaged, then the cost of repair or
replacement shall be the Customer’s responsibility. Any damage, deformation or defect
arising from storage is not a matter for which the Agent is responsible and the Customer
indemnifies the Agent for such matters.
9.2 If the Customer fails to take delivery of any of Goods & Services at the agreed date or time,
without prejudice to any other rights the Agent may have, delivery of the Goods is deemed to
have occurred and the Agent may store or arrange for the storage of those Goods off site or at
its own locations however, any costs or expenses incurred by the Agent in relation to such
transportation and storage, including any insurance, of the Goods pending delivery,
assembly/installation at, and dispatch to, the site are payable by the Customer plus ten
10.1 The Customer shall ensure that the Agent has clear and free access to the site at all times to
enable the provision of the Goods & Services. The Agent shall not be liable for any loss or
damage to the site (including, without limitation, damage to pathways, driveways, decks, hard
or grassed areas).
11.1 The Agent and the Customer agree that ownership of any items provided as part of the
provision of Goods & Services shall not pass until:
(a) the Customer has paid the Agent in full all amounts owing for the Goods & Services;
(b) the Customer has met all other obligations due by the Customer to the Agent in
respect of all contracts between the Agent and the Customer.
11.2 Receipt by the Agent of any form of payment other than cash shall not be deemed to be
payment until that form of payment has been honoured, cleared or recognised and until then,
the Agent’s ownership or rights in respect of such items shall continue.
11.3 It is further agreed that pending payment in full of any amount due by the Customer to the
(a) the Customer is only a bailee of the items and must return the items to the Agent
immediately upon request by the Agent;
(b) the Customer holds the benefit of the Customer’s insurance of such items on trust for
the Agent and must pay to the Agent the proceeds of any insurance in the event of the
items being lost, damaged or destroyed;
(c) the Customer must not sell, dispose or otherwise part with possession of the items. If
the Customer sells, disposes or parts with possession of the items, then the Customer
must hold the proceeds of sale of such items on trust for the Agent and must pay or
deliver the proceeds to the Agent on demand;
(d) the Customer should not convert or process the items or intermix them with other
goods, but if the Customer does, so then the Customer holds the resulting product on
trust for the benefit of the Agent and must dispose of or return the resulting product
to the Agent as the Agent so directs;
(e) the Customer shall not charge or grant an encumbrance over the items nor grant nor
otherwise give away any interest in the items while they remain the property of the
(f) the Customer irrevocably authorises the Agent to enter any premises where the Agent
believes the items are kept and recover possession of the items.
- Personal Property Securities Act 2009 (Cth) (“PPSA”)
12.1 In this clause 12, the terms ‘financing statement’, ‘financing change statement’, ‘security
agreement’ and ‘security interest’ have the meanings given to them by the PPSA.
12.2 The Customer acknowledges and agrees that this contract constitutes a security agreement
for the purposes of the PPSA and creates a security interest in:
(a) all items supplied by the Agent to the Customer under this contract;
(b) all items supplied in the future by the Agent to the Customer; and
(c) all the Customer’s present and after acquired property including any thing in respect
of which the Customer has at any time a sufficient right, interest or power sufficient
to grant a security interest, being a charge granted by the Customer in favour of the
Agent for the purposes of securing payment of all monetary obligations in relation to
the provision of the Goods & Services under this contract.
12.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such
information to be complete, accurate and up-to-date in all respects) which the Agent
may reasonably require to;
(i) register a financing statement or financing change statement in relation to a
security interest on the Personal Property Securities Register established by
the PPSA (“PPSR”);
(ii) register any other document required to be registered by the PPSA; or (iii)
correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Agent for all expenses incurred in
registering a financing statement or financing change statement on the PPSR or
releasing any items charged;
(c) not register a financing change statement in respect of a security interest without the
prior written consent of the Agent; and0
(d) not register, or permit to be registered, a financing statement or a financing change
statement in relation to the items and/or collateral (account) in favour of a third party
without the prior written consent of the Agent.
12.4 The Agent and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to
the security agreement created by these terms and conditions. 12.5 The Customer waives its
rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the
12.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of
12.7 Unless otherwise agreed to in writing by the Agent, the Customer waives any right to receive
a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by the Agent under clauses 12.3
12.9 Subject to any express provisions to the contrary nothing in these terms and conditions is
intended to have the effect of contracting out of any of the provisions of the PPSA.
- Security and Charge
13.1 In consideration of the Agent agreeing to supply Goods & Services, the Customer charges all
of its right, title and interest (whether joint or several) in any land, realty or other assets
capable of being charged, owned by the Customer either now or in the future, to secure the
performance by the Customer of its obligations under this contract (including, but not limited
to, the payment of any money) and irrevocably authorises the Agent to lodge caveats or other
documents or notices to notify and protect that charge.
13.2 The Customer indemnifies the Agent from and against all the Agent’s costs and disbursements
including legal costs on a solicitor and own Customer basis incurred in exercising the Agent’s
rights under this contract.
13.3 The Customer irrevocably appoints the Agent and each director of the Agent as the Customer’s
true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this
clause 13 including, but not limited to, signing any document on the Customer’s behalf.
- Defects, Warranties and the Competition and Consumer Act 2010 (“CCA”)
14.1 The Customer must within twenty-four (24) hours of completion inspect and notify the Agent
in writing of any evident defect in the Goods & Services or Incidental Items provided
(including the Agent’s workmanship) or of any other claimed failure by the Agent to comply
with the description of, or quote for, the Goods & Services which the Agent was to supply. The
Customer must notify any other alleged defect as soon as is reasonably possible after any such
defect becomes evident. Upon such notification, the Customer must allow the Agent to review
the Goods & Services or Incidental Items that were provided.
14.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the
CCA), certain statutory implied guarantees and warranties (including, without limitation the
statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-
14.3 The Agent acknowledges that nothing in these terms and conditions purports to modify or
exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in this contract or in respect of the Non-Excluded Guarantees, the
Agent makes no warranties or other representations including, but not limited to, the quality
or suitability of the Goods & Services. The Agent’s liability in respect of these warranties is
limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, then:
(a) our goods come with guarantees that cannot be excluded under the Australian
Consumer Law. You are entitled to a replacement or refund for a major failure and for
compensation for any other reasonably foreseeable loss or damage. You are also
entitled to have the goods repaired or replaced if the goods fail to be of acceptable
quality and the failure does not amount to a major failure. Any warranties provided
in relation to goods are those of the manufacturer; and
(b) the Agent’s liability is limited to the extent permitted by section 64A of Schedule 2 of
14.6 If the Agent is required to rectify, re-supply or pay the cost of re-supplying the Goods &
Services under this clause 14 or the CCA, but is unable to do so, then the Agent may refund
any money the Customer has paid for the Goods & Services but only to the extent that such
refund shall take into account the value of Goods & Services and Incidental Items which have
been provided to the Customer which were not defective.
14.7 If the Customer is not a consumer within the meaning of the CCA, the Agent’s liability for any
defective Goods & Services or Incidental Items is:
(a) limited to the value of any express warranty or warranty card provided to the
Customer by the Agent at the Agent’s sole discretion; or
(b) otherwise negated absolutely.
14.8 Notwithstanding clauses 14.1 to 14.7, but subject to the CCA, the Agent shall not be liable for
any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly use, maintain or store any items provided;
(b) the Customer using the items provided for any purpose other than that for which they
(c) the Customer continuing to use any items provided after any defect became apparent
or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Goods & Services or Incidental Items by the Customer or any
third party without the Agent’s prior approval;
(e) the Customer failing to follow any instructions or guidelines provided by the Agent;
(f) fair wear and tear, any accident, weather event or act of God.
14.9 Any advice, recommendation, information or assistance given by the Agent in relation to
fabric, finish or colour choice is given in good faith and is believed to be accurate, appropriate
and reliable at the time it is given, but is provided without any warranty or accuracy,
appropriateness or reliability. The Agent is not liable for and the Customer releases and
indemnifies the Agent from any liability or responsibility for any loss suffered from reliance
on any such advice, recommendation, information or assistance.
- Intellectual Property
15.1 Where the Agent has designed, drawn or developed items for the Customer, then the copyright
or any other intellectual property right in relation to such items shall remain the property of
the Agent. Under no circumstances may such designs, drawings and documents be used
without express written approval of the Agent.
15.2 The Customer warrants that all designs, specifications or instructions given to the Agent will
not cause the Agent to infringe any patent, registered design or trademark in the execution of
the Customer’s order and the Customer agrees to indemnify the Agent against any action
taken by a third party against the Agent in respect of any such infringement.
15.3 The Customer unconditionally, irrevocably and forever authorizes and agrees to the Agent
may take and use in perpetuity any audio-visual and still images of installed the Goods &
Services and Incidental Items at the site for the purposes of marketing and promotion of the
Agent’s business and the Goods & Services and Incidental Items anywhere in the world
whether with other images and/or text and graphics as the Agent sees fit (whether on the
Agent’s website and/or social media accounts, any other website or social media accounts of
third parties, any television, magazine or other media publication or entry into any
competition or otherwise as the Agent sees fit) without any fee or reward to the Customer.
- Default and Consequences of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due,
until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and
at the Agent’s sole discretion such interest shall compound monthly at such a rate) after as
well as before any judgment.
16.2 If the Customer owes the Agent any money, the Customer shall indemnify the Agent from and
against all costs and disbursements incurred by the Agent in recovering the debt (including
but not limited to internal administration fees, legal costs and disbursements on a solicitor
and own Customer basis and bank dishonour fees).
16.3 Further to any other rights or remedies the Agent may have under this contract, if a Customer
has made payment to the Agent, and the transaction is subsequently reversed, the Customer
shall be liable for the amount of the reversed transaction, in addition to any further costs
incurred by the Agent under this clause 16 where it can be proven that such reversal is found
to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
16.4 Without prejudice to any other remedies the Agent may have, if at any time the Customer is in
breach of any obligation (including those relating to payment) under this contract, the Agent
may suspend or terminate the supply of Goods & Services (or any part of them) to the
Customer. The Agent will not be liable to the Customer for any loss or damage the Customer
suffers because the Agent has exercised its rights under this clause 16.
16.5 Without prejudice to the Agent’s other remedies at law, the Agent shall be entitled to cancel
all or any part of any order of the Customer which remains unfulfilled and all amounts owing
to the Agent shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Agent becomes overdue, or if in the Agent’s opinion the
Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes
or enters into an arrangement with creditors or makes an assignment for the benefit
of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise), administrator or similar
person is appointed in respect of the Customer or any asset of the Customer.
17.1 The Agent may cancel any contract to which these terms and conditions apply or cancel
delivery of Goods & Services at any time before the preparations for the supply of the Goods
& Services has commenced by giving written notice to the Customer. On giving such notice,
the Agent shall repay to the Customer any money paid by the Customer for the Goods &
Services (less any costs incurred in relation to the intended supply). The Agent shall not be
liable for any loss or damage whatsoever arising from such cancellation.
17.2 If the Customer cancels delivery of the Goods & Services (or any part of them) due to the
default of the Customer, then the Customer shall be liable for any and all costs, expenses and
losses incurred (whether direct or indirect) by the Agent as a direct result of the cancellation
(including, but not limited to, any loss of profits).
- Privacy Act 1988 (Cth)
18.1 The Customer agrees for the Agent to obtain from a credit reporting body (“CRB”) a credit
report containing personal credit information (e.g. name, address, date of birth, occupation,
previous credit applications, credit history) about the Customer.
18.2 The Customer agrees that the Agent may exchange information about the Customer with any
CRB and with related body corporates for the following purposes:
(a) to assess an application by the Customer;
(b) to notify other CRBs and credit providers of a default by the Customer;
(c) to exchange information with other CRBs and credit providers to the status of the
Customer’s credit account, where the Customer is in default with other credit
(d) to assess the creditworthiness of the Customer including the Customer’s repayment
18.3 The Customer consents to the Agent being given a consumer credit report to collect overdue
payment on commercial credit.
18.4 The Customer agrees that personal credit information provided may be used and retained by
the Agent for the following purposes (and for other agreed purposes):
(a) the provision of Goods & Services;
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in
relation to the provision of Goods & Services;
(c) processing of any payment instructions, direct debit facilities and/or credit facilities
requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods & Services.
18.5 The Agent may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report; and/or
(b) allow the CRB to create or maintain a credit information file about the Customer
including credit history.
18.6 The information given to a CRB may include:
(a) personal information as outlined in 18.1 above;
(b) name of the credit provider and that the Agent is a current credit provider to the
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g.
date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or
outstanding monies which are overdue by more than sixty (60) days and for which
written notice for request of payment has been made or debt recovery action
commenced or alternatively that the Customer no longer has any overdue accounts
and the Agent has been paid or otherwise discharged and all details surrounding that
discharge (e.g. dates of payments);
(g) information that, in the opinion of the Agent, the Customer has committed a serious
credit infringement; and/or
(h) advice that the amount of the Customer’s overdue payment is equal to or more than
one hundred and fifty dollars ($150).
18.7 The Customer shall have the right to request (by e-mail) from the Agent: (a) a copy of the
information about the Customer retained by the Agent and the right to request that the Agent
correct any incorrect information; and (b) that the Agent does not disclose any personal
information about the Customer for the purpose of direct marketing.
18.8 The Agent will destroy personal information upon the Customer’s request (by e-mail) or if it
is no longer required unless it is required in order to fulfil the obligations of this contract or
is required to be maintained and/or stored in accordance with the law.
18.9 The Customer can make a privacy complaint by contacting the Agent via e-mail. The Agent will
respond to that complaint within seven (7) days of receipt and will take all reasonable steps
to make a decision as to the complaint within thirty (30) days of receipt of the complaint. If
the Customer is not satisfied with the resolution provided, the Customer can make a complaint
to the Office of the Australian Information Commissioner at www.oaic.gov.au.
- Unpaid Seller’s Rights
19.1 Where the Customer has left any item with the Agent for repair, modification, exchange or for
the Agent to perform any other service in relation to the item and the Agent has not received
or been tendered the whole of any monies owing to it by the Customer, the Agent shall have,
until all monies owing to the Agent are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any
legislation applicable to the sale or disposal of uncollected goods.
19.2 The lien of the Agent shall continue despite the commencement of proceedings, or judgment
for any monies owing to the Agent having been obtained against the Customer.
20.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this
(d) if sent by email to the other party’s last known email address.
20.2 Any notice that is posted shall be deemed to have been served at the time it was delivered in
person, sent by email or left at an address or if posted, after on the fourth business day after
21.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the
capacity of trustee of any trust (‘Trust’) then, whether or not the Agent may have notice of the
Trust, the Customer covenants with the Agent as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or
subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into
this contract and the provisions of the Trust do not purport to exclude or take away
the right of indemnity of the Customer against the Trust or the trust fund. The
Customer will not release the right of indemnity or commit any breach of trust or be
a party to any other action which might prejudice that right of indemnity; and
(c) the Customer will not without consent in writing of the Agent (which will not be
unreasonably withheld) cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the Trust’s property.
22.1 The failure by the Agent to enforce any provision of this contract shall not be treated as a
waiver of that provision, nor shall it affect the Agent’s right to subsequently enforce that
provision. If any provision of these terms and conditions shall be invalid, void, illegal or
unenforceable, the validity, existence, legality and enforceability of the remaining provisions
shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the
laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
22.3 Subject to clause 14, the Agent shall be under no liability whatsoever to the Customer for any
indirect and/or consequential loss and/or expense (including loss of profit) suffered by the
Customer arising out of a breach by the Agent of this contract (alternatively the Agent’s
liability shall be limited to damages which under no circumstances shall exceed the Price of
the Goods & Services).
22.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed
or claimed to be owed to the Customer by the Agent nor to withhold payment of any invoice
because part of that invoice is in dispute.
22.5 The Agent may license or sub-contract all or any part of its rights and obligations without the
22.6 The Customer agrees that the Agent may amend these terms and conditions at any time. If the
Agent makes a change to these terms and conditions, then that change will take effect from
the date on which the Agent notifies the Customer of such change. The Customer will be taken
to have accepted such changes if the Customer makes a further request for the Agent to
provide Services to the Customer.
22.7 Neither party shall be liable for any default (other than payment by the Customer) due to any
act of God, war, terrorism, pandemic, shortages or materials, Government decrees,
proclamations or orders, transport difficulties, strike, lock-out, industrial action, fire, flood,
storm or other event beyond the reasonable control of either party.
22.8 The Customer warrants that it has the power to enter into this agreement and has obtained
all necessary authorisations to allow it to do so, it is not insolvent and that this contract creates
binding and valid legal obligations on it.