Britton Fabrication Pty Ltd - Terms and Conditions of Trade 1. Denitions 1.1 “Engineer” means Britton Fabrications Pty Limited, its successors and assigns or any person acting on behalf of and with the authority of Britton fabrication Pty Limited. 1.2 “Client” means the person/s buying the Goods (and/or hiring Equipment) as specied in any invoice, document, or order, and if there is more than one Client is a reference to each Client jointly and severally. 1.3 “Goods” means all Goods or Services supplied by the Engineer to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other). 1.4 “Equipment” means all Equipment including any accessories supplied on hire by the Engineer to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by the Engineer to the Client. 1.5 “Price” means the Price payable for the Goods and/or Equipment hire as agreed between the Engineer and the Client in accordance with clause 4 below. 2. Acceptance 2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment. 2.2 These terms and conditions may only be amended with the Engineer’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Engineer. 3. Change in Control 3.1 The Client shall give the Engineer not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Engineer as a result of the Client’s failure to comply with this clause. 4. Price and Payment 4.1 At the Engineer’s sole discretion, the Price shall be either: (a) as indicated on any invoice provided by the Engineer to the Client; or (b) the Price as at the date of delivery of the Goods/Equipment according to the Engineer’s current price list; or (c) the Engineer’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. 4.2 The Engineer reserves the right to change the Price: (a) if a variation to the Goods which are to be supplied is requested; or (b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or (c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, change of design, hidden pipes and wiring in walls etc) which are only discovered on commencement of the Services; or (d) in the event of increases to the Engineer in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond the Engineer’s control. 4.3 At the Engineer’s sole discretion, a non-refundable deposit may be required. 4.4 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by the Engineer, which may be: (a) on delivery of the Goods/Equipment; (b) by way of instalments/progress payments in accordance with the Engineer’s payment schedule; (c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices; (d) the date specified on any invoice or other form as being the date for payment; or (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Engineer. 4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and the Engineer. 4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Engineer an amount equal to any GST the Engineer must pay for any supply by the Engineer under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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. 5. Delivery of Goods/Equipment 5.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that: (a) the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at the Engineer’s address; or (b) the Engineer (or the Engineer’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address. 5.2 At the Engineer’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price. Page 1 of 6 Britton Fabrication Pty Ltd - Terms and Conditions of Trade 5.3 The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the Goods/Equipment as arranged then the Engineer shall be entitled to charge a reasonable fee for redelivery of the Goods/Equipment and/or the storage of the Goods. 5.4 The Engineer may deliver the Goods/Equipment in separate installments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions. 5.5 Subject to clause 5.6 it is the Engineer’s responsibility to ensure that the Services start as soon as it is reasonably possible. 5.6 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Engineer claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Engineer’s control, including but not limited to any failure by the Client to: (a) make a selection; or (b) have the site ready for the Services; or (c) notify the Engineer that the site is ready. 5.7 Any time or date given by the Engineer to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and the Engineer will not be liable for any loss or damage incurred by the Client as a result of the delivery being late. 6. Risk 6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery. 6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Engineer is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Engineer is sufficient evidence of the Engineer’s rights to receive the insurance proceeds without the need for any person dealing with the Engineer to make further enquiries. 6.3 If the Client requests the Engineer to leave Goods outside the Engineer’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk. 6.4 Where the contract does not include installation of Goods by the Engineer, the Engineer shall not be liable for any defect or damage resulting from incorrect or faulty installation. 6.5 The Client acknowledges that the Engineer is only responsible for parts that are replaced by the Engineer and that in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify the Engineer against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising. 6.6 The Customer warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that the Engineer, its employees or the Engineer’s reasonably form the opinion that the Customer’s premises is not safe for the installation of Goods to proceed then the Engineer shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 5.6 above) until the Engineer is satisfied that it is safe for the installation to proceed. 6.7 Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 4.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required. 6.8 The final location of the wall, window or floor unit must be determined on site by the Client. 6.9 The Engineer shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however the Engineer cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc. 6.10 In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved. 6.11 The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage. 6.12 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify the Engineer immediately upon any proposed changes. The Client agrees to indemnify the Engineer against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 4.2. 7. Access 7.1 The Client shall ensure that the Engineer has clear and free access to the work site at all times to enable them to undertake the Services. The Engineer shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Engineer. 8. Underground Locations 8.1 Prior to the Engineer commencing any work the Client must advise the Engineer of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site. 8.2 Whilst the Engineer will take all care to avoid damage to any underground services the Client agrees to indemnify the Engineer in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1. 9. Title To Goods 9.1 The Engineer and the Client agree that ownership of the Goods shall not pass until: (a) the Client has paid the Engineer all amounts owing to the Engineer; and Page 2 of 6 Britton Fabrication Pty Ltd - Terms and Conditions of Trade (b) the Client has met all of its other obligations to the Engineer. 9.2 Receipt by the Engineer 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. 9.3 It is further agreed that: (a) until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to the Engineer on request. (b) the Client holds the benet of the Client’s insurance of the Goods on trust for the Engineer and must pay to the Engineer the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. (c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Engineer and must pay or deliver the proceeds to the Engineer on demand. (d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benet of the Engineer and must sell, dispose of or return the resulting product to the Engineer as it so directs. (e) the Client irrevocably authorises the Engineer to enter any premises where the Engineer believes the Goods are kept and recover possession of the Goods. (f) the Engineer may recover possession of any Goods in transit whether or not delivery has occurred. (g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Engineer. (h) the Engineer may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client. 10. Personal Property Securities Act 2009 (“PPSA”) 10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment that has previously been supplied and that will be supplied in the future by the Engineer to the Client. 10.3 The Client 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 Engineer 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; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii); (b) indemnify, and upon demand reimburse, the Engineer for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of the Engineer; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment in favour of a third party without the prior written consent of the Engineer; (e) immediately advise the Engineer of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales. 10.4 The Engineer and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions. 10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA. 10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA. 10.7 Unless otherwise agreed to in writing by the Engineer, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA. 10.8 The Client must unconditionally ratify any actions taken by the Engineer under clauses 10.3 to 10.5. 10.9 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. 11. Security and Charge 11.1 In consideration of the Engineer agreeing to supply the Goods/Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 11.2 The Client indemnifies the Engineer from and against all the Engineer’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Engineer’s rights under this clause. 11.3 The Client irrevocably appoints the Engineer and each director of the Engineer as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf. 12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA) Page 3 of 6 Britton Fabrication Pty Ltd - Terms and Conditions of Trade 12.1 The Client must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify the Engineer in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notication the Client must allow the Engineer to inspect the Goods/Equipment. 12.2 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-Excluded Guarantees). 12.3 The Engineer acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. 12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Engineer makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. The Engineer’s liability in respect of these warranties is limited to the fullest extent permitted by law. 12.5 If the Client is a consumer within the meaning of the CCA, the Engineer’s liability is limited to the extent permitted by section 64A of Schedule 2. 12.6 If the Engineer is required to replace the Goods under this clause or the CCA, but is unable to do so, the Engineer may refund any money the Client has paid for the Goods. 12.7 If the Client is not a consumer within the meaning of the CCA, the Engineer’s liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Client by the Engineer at the Engineer’s sole discretion; (b) limited to any warranty to which the Engineer is entitled, if the Engineer did not manufacture the Goods; (c) otherwise negated absolutely. 12.8 Subject to this clause 12, returns will only be accepted provided that: (a) the Client has complied with the provisions of clause 12.1; and (b) the Engineer has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible. 12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, the Engineer 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 Client failing to properly maintain or store any Goods/Equipment; (b) the Client using the Goods/Equipment for any purpose other than that for which they were designed; (c) the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Client failing to follow any instructions or guidelines provided by the Engineer; (e) fair wear and tear, any accident, or act of God. 12.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Engineer as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Engineer has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 12.10. 12.11 Notwithstanding anything contained in this clause if the Engineer is required by a law to accept a return then the Engineer will only accept a return on the conditions imposed by that law. 13. Intellectual Property 13.1 Where the Engineer has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Engineer. 13.2 The Client warrants that all designs, specifications or instructions given to the Engineer will not cause the Engineer to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Engineer against any action taken by a third party against the Engineer in respect of any such infringement. 13.3 The Client agrees that the Engineer may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Engineer has created for the Client. 14. Default and Consequences of Default 14.1 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 Engineer’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 14.2 If the Client owes the Engineer any money the Client shall indemnify the Engineer from and against all costs and disbursements incurred by the Engineer in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Engineer’s contract default fee, and bank dishonour fees). 14.3 Without prejudice to any other remedies the Engineer may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Engineer may suspend or terminate the supply of Goods/Equipment to the Client. The Engineer will not be liable to the Client for any loss or damage the Client suffers because the Engineer has exercised its rights under this clause. 14.4 Without prejudice to the Engineer’s other remedies at law the Engineer shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Engineer shall, whether or not due for payment, become immediately payable if: Page 4 of 6 Britton Fabrication Pty Ltd - Terms and Conditions of Trade (a) any money payable to the Engineer becomes overdue, or in the Engineer’s opinion the Client will be unable to make a payment when it falls due; (b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benet of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client. 15. Compliance with Laws (separate clause before Cancellation – use for most things except selling) 15.1 The Client and the Engineer shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services. 15.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services. 15.3 The Client agrees that the site will comply with any work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation. 16. Cancellation 16.1 The Engineer may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice the Engineer shall repay to the Client any money paid by the Client for the Goods/Equipment. The Engineer shall not be liable for any loss or damage whatsoever arising from such cancellation. 16.2 In the event that the Client cancels delivery of the Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Engineer as a direct result of the cancellation (including, but not limited to, any loss of profits). 16.3 Cancellation of orders for Goods/Equipment made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed. 17. Privacy Act 1988 17.1 The Client agrees for the Engineer to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Engineer. 17.2 The Client agrees that the Engineer may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes: (a) to assess an application by the Client; and/or (b) to notify other credit providers of a default by the Client; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or (d) to assess the creditworthiness of the Client. The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988. 17.3 The Client consents to the Engineer being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). 17.4 The Client agrees that personal credit information provided may be used and retained by the Engineer for the following purposes (and for other purposes as shall be agreed between the Client and Engineer or required by law from time to time): (a) the provision of Goods/Equipment; and/or (b) the marketing of Goods/Equipment by the Engineer, its agents or distributors; and/or (c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or (e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods/Equipment. 17.5 The Engineer may give information about the Client to a credit reporting agency for the following purposes: (a) to obtain a consumer credit report about the Client; (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client. 17.6 The information given to the credit reporting agency may include: (a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number); (b) details concerning the Client’s application for credit or commercial credit and the amount requested; (c) advice that the Engineer is a current credit provider to the Client; (d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started; (e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed; (f) information that, in the opinion of the Engineer, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations); (g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once; (h) that credit provided to the Client by the Engineer has been paid or otherwise discharged. 18. Unpaid Seller’s Rights Page 5 of 6 Britton Fabrication Pty Ltd - Terms and Conditions of Trade 18.1 Where the Client has left any item with the Engineer for repair, modication, exchange or for the Engineer to perform any other service in relation to the item and the Engineer has not received or been tendered the whole of any moneys owing to it by the Client, the Engineer shall have, until all moneys owing to the Engineer 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. 18.2 The lien of the Engineer shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Engineer having been obtained against the Client. 19. Equipment Hire 19.1 Equipment shall at all times remain the property of the Engineer and is returnable on demand by the Engineer. In the event that Equipment is not returned to the Engineer in the condition in which it was delivered the Engineer retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all the Engineer shall have right to charge the Client the full cost of replacing the Equipment. 19.2 The Client shall; (a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment. (b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment. (c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Engineer to the Client. 19.3 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, the Engineer’s interest in the Equipment and agrees to indemnify the Engineer against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim. 20. Building and Construction Industry Security of Payments Act 1999 20.1 At the Engineer’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply. 20.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable. 21. General 21.1 The failure by the Engineer to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Engineer’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. 21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of New South Wales in which the Engineer has its principal place of business, and are subject to the jurisdiction of the courts in that state. 21.3 Subject to clause 12 the Engineer shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Engineer of these terms and conditions (alternatively the Engineer’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire). 21.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Engineer nor to withhold payment of any invoice because part of that invoice is in dispute. 21.5 The Engineer may license or sub-contract all or any part of its rights and obligations without the Client’s consent. 21.6 The Client agrees that the Engineer may amend these terms and conditions at any time. If the Engineer makes a change to these terms and conditions, then that change will take effect from the date on which the Engineer notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Engineer to provide Goods/Equipment to the Client. 21.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party. 21.8 The Client 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 agreement creates binding and valid legal obligations on it. Page 6 of 6