Terms and Conditions
1. Definitions
1.1 “Supplier” shall mean Black Rock Balustrades its successors, assigns or relatedentities or any person acting on behalf of and with the authority of Black RockBalustrades. 1.2 “Customer” shall mean the Customer or any person acting on behalf of andwith the authority of the Customer. 1.3 “Work” shall mean all Works (including the supply of materials) undertakenby the Supplier and described in this on the invoices, quotation, workauthorisation or any other forms as provided by the Supplier to the Customerand includes any advice or recommendations. 1.4 “Materials”shall mean all Materials required to complete the Works, 1.5 “Price”shall mean the cost of the Works as agreed between the Supplier and theCustomer subject to clause 3 of this contract. 1.6 The headings used in this Agreement do not form part of these terms andconditions and are for convenience only. 1.7 Where the context admits or requires, words importing the singular shallinclude the plural, those denoting a given gender shall include all othergenders and those denoting natural persons shall include corporations.
2. Acceptance
2.1 Anyinstructions received by the Supplier from the Customer for the supply of Worksand/or the Customer’s acceptance of Works undertaken by the Supplier shallconstitute acceptance of the terms and conditions contained herein. 2.2 Where more than one Customer has entered into this agreement, the Customersshall be jointly and severally liable for all payments of the Price. 2.3 Unless agreed to in writing by the Supplier, any variation of these termsand conditions, including any terms and conditions of the Customer’s orderdeviating from or inconsistent with these terms and conditions, is rejected bythe Supplier. 2.4 The Customer undertakes to give the Supplier at least fourteen (14) daysnotice of any change in the Customer’s name, address and/or any other change inthe Customer’s details.
3. General
3.1 TheSupplier may vary these terms and conditions by a notice of variation inwriting to the Customer. The Customer agrees that the purchase of any materialsor services after the date of a notice of variation will be deemed to be anacceptance of such varied terms and conditions by the Customer. 3.2 These terms and conditions and all obligations hereunder shall be bindingon the Customer’s personal representatives, successors and permitted assignsand shall be for the benefit of the Supplier’s successors and assigns. 3.3 Where the Customer is comprised of the names of two or more persons theneach person is jointly and severally liable to pay all monies owed by theCustomer to the Supplier. 3.4 Where there is any inconsistency between these terms and conditions(including any updated versions of these terms and conditions) and anysubsequent agreement with the Customer for the supply of materials or servicesby the Supplier, then such subsequent agreement shall only prevail to theextent that it is inconsistent with these terms and conditions (including anyupdated versions of these terms and conditions).
3.5 The waiver of any of these terms and conditions by the Supplier shall notbe construed as a continuing waiver of that term or condition and the Suppliershall be entitled to require compliance with all of these terms and conditionsat any time.
4. Variations
4.1 Inthe event that the Customer requests a variation all such requests shall bemade in writing. 4.2 Inthe event that the Supplier requests a variation, the Supplier will, in writing:(a) state the reason for the variation; and (b) provide a full description ofthe variation; and (c) state any effect the variation will have on thecontract, including but not limited to, the Price, completion date and whetherfurther permits or authorisations are required. 4.3 Otherthan for the events outlined in clause 4.4 the Supplier shall obtain writtenacceptance by the Customer of any variation submitted by the Supplier beforecommencing Work on the variation. 4.4 In theevent of: (a) unforeseeable problems with the site which are only revealed whenundertaking the Works which the Supplier considers should be immediatelyrectified for the safe completion of the Works; or (b) the Supplier beinginstructed to undertake extra Works by any person authorised by the BuildingAct 1993: then the Supplier may carry out any Works needed to fix any suchproblem/s or carry out any such instructions. Any such additional Worksnecessary are to be treated as a variation. However if a Price is not agreedupon then the Customer will be charged at the Supplier’s actual cost plustwenty percent (20%) for the Works.
5. Delivery Of Works
5.1Subject to clause 5.2 it is the Supplier’s responsibility to ensure that theWorks start as soon as it is reasonably possible. 5.2 TheWorks commencement date will be put back and the building period extended bywhatever time is reasonable in the event that the Supplier claims an extensionof time (by giving the Customer written notice) where completion is delayed byan event beyond the Supplier’s control, including but not limited to anyfailure by the Customer to: (a) make a selection; or (b) have the site readyfor installation; or (c) notify the Supplier that the site is ready. 5.3 TheWorks shall be deemed to be completed when: (a) the Works carried out underthis contract have been completed in accordance with the plans andspecifications set out in this contract; or (b) the Customer is given either: (i)a copy of the occupancy permit under the Building Act 1993, if the building permitfor the Works requires the issue of an occupancy permit; or (ii) in any othercase, a copy of the certificate of final inspection. 5.4 Thefailure of the Supplier to deliver shall not entitle either party to treat thiscontract as repudiated. 5.5 The Suppliershall not be liable for any loss or damage whatever due to failure by the Supplierto deliver the Works (or any of them) promptly or at all.
6. Delivery Of Materials
6.1Delivery dates are estimates only; the Supplier will notify the Customer whenthe materials are available for delivery. 6.2 At the Supplier’s sole discretion delivery of the Materials shall takeplace when; (a) the Customer takes possession of the Materials at theSupplier’s address; or (b) the Customer takes possession of the Materials atthe Customer’s address (in the event that the Materials are delivered by the Supplieror the Supplier’s nominated carrier); or (c) the Customer’s nominated carriertakes possession of the Materials in which event the Carrier shall be deemed tobe the Customer’s agent. 6.3 At the Supplier’s sole discretion the costs of delivery are; (a) includedin the Price, or (b) in addition to the Price, or (c) for the Customer’saccount. 6.4 Delivery of the Materials to a third party nominated by the Customer isdeemed to be delivery to the Customer for the purposes of this agreement. 6.5 The Supplier may deliver the Materials by separate instalments. Each separateinstalment shall be invoiced and paid for in accordance with the provisions inthese terms and conditions. 6.6 The Customer shall take delivery of the Materials tendered notwithstandingthat the quantity so delivered shall be either greater or less than thequantity purchased provided that; (a) such discrepancy in quantity shall notexceed 5%, and (b) the Price shall be adjusted pro rata to the discrepancy. 6.7 The failure of the Supplier to deliver shall not entitle either party totreat this contract as repudiated. 6.8 The Supplier shall not be liable for any loss or damage whatever due tofailure by the Supplier to deliver the Materials (or any of them) promptly orat all.
7. Price And Payment
7.1 At theSupplier’s sole discretion a deposit may be required. 7.2 Payment shall be due: (a) before the delivery of the Works; or (b) ondelivery of the Works, at the Supplier’s sole discretion. 7.3 TheSupplier shall change a call out fee where an appointment has been booked formeasuring or installation and are unable to commence work due to lack of accessibilityor site readiness. This does not applyto appointments affected by weather. 7.4 The Supplier may submit a detailed payment claim at intervals, at their owndiscretion, for Work already performed. The value of work so performed shallinclude the reasonable value of authorised variations, whether or not the valueof such variations has been finally agreed between the parties, and the valueof materials delivered to the site but not installed. 7.5 Time for payment for the Works shall be of the essence and will be statedon the invoice. If no time is stated then payment shall be due thirty (30) daysfollowing the date of the invoice. 7.6 Paymentwill be made by cash, or by cheque, or by bank cheque, or by direct credit, orby any other method as agreed to between the Customer and the Supplier. 7.7 Inthe event of any minor Works still to be completed by the Supplier, theCustomer may (at the Supplier’s sole discretion) withhold payment, the amountequal to the value of the Works still to be completed by the Supplier.
8. GST
8.1 In this clause the expressions “GST”, “input tax credit”, “tax invoice”,“recipient” and “taxable supply” have the meanings given to those expressionsin the New Tax System, (Goods and Services Tax) Act 1999. 8.2 With the exception of any amount payable under this clause 12, unlessotherwise expressly stated all amounts stated to be payable by the Customerunder these terms and conditions are exclusive of GST. 8.3 If GST is imposed on any supply made under or in accordance with theseterms and conditions, the recipient of the taxable supply must pay to theSupplier an additional amount equal to the GST payable on or for the taxablesupply. Payment of the additional amount will be made at the same time aspayment for the taxable supply is required to be made in accordance with thisdocument, subject to the provision of a tax invoice.
9. Customer’s Responsibility
9.1 It isthe intention of the Supplier and agreed by the Customer that: (a) anybuilding/construction sites will comply with all Victorian occupational healthand safety laws relating to building/construction sites and any other relevantsafety standards or legislation; and (b) the Supplier is not responsible forthe removal of rubbish from or clean up of the building/construction site/s.This is the responsibility of the Customer or the Customer’s agent.
10. Evidence of Monies Payable
10.1 Astatement in writing signed by any director, secretary, administration manageror credit manager of the Supplier stating the balance of the monies due to theSupplier by the Customer shall be prima facie evidence of the amount ofindebtedness of the Customer to the Supplier at the date of that statement.
11. Credit Limit
11.1 Anycredit limit is solely for the benefit of the Supplier. 11.2 The obligations of the Customer under this Agreement remain unchanged ifthe credit limit is exceeded or not specified at any time.
12. Force Majeure
12.1 The Supplier shall not be liable for any delay or for the consequences of any delayin performing or failure to perform any of its obligations under this Agreementif such delay is due in full or in part to any cause whatsoever beyond itsreasonable control. Such delay or failure shall not constitute a breach of this Agreement and theSupplier shall be entitled at its option to either extend the time for deliveryor performance for a reasonable period or to determine the contract without anyrecourse by the Customer to any claim for damages.
13. Risk
13.1 Ifthe Supplier retains ownership of the Materials nonetheless, all risk for the Materialspasses to the Customer on delivery. 13.2 If any of the Materials are damaged or destroyed following delivery butprior to ownership passing to the Customer, the Supplier is entitled to receiveall insurance proceeds payable for the Materials. The production of these termsand conditions by the Supplier is sufficient evidence of the Supplier’s rightsto receive the insurance proceeds without the need for any person dealing withthe Supplier to make further enquiries. 13.3 Whilstall due care will be taken by the Supplier, no liability will be accepted bythe Supplier for any damage occurring during the Works, including, but notlimited to, broken tiles, damaged render, or penetration of water proofingmembrane. 13.4 Anyadvice, recommendation, information, assistance or service provided by the Supplierin relation to the Works supplied is given in good faith and shall be acceptedwithout liability on the part of the Supplier and it shall be theresponsibility of the Customer to confirm the accuracy and reliability of thesame in light of the use to which the Customer makes or intends to make of theWorks.
14. Surplus Materials
14.1Unless otherwise stated elsewhere in this contract; (a) only suitable newMaterials will be used; and (b) demolished Materials remain the Customer’sproperty; and (c) Materials which the Supplier brings to the site which aresurplus remain the property of the Supplier.
15. Structural Requirement
15.1 All effort is made by the Supplier to detectany existing structural deficiencies at the Customer’s work site at the time ofquoting. However, at the installation stage further structural supports may beneeded to enable the Supplier to deliver the Works. It is the responsibility ofthe Customer at the Customer’s cost to ensure that there are adequatestructural fixing points where required. The Supplier reserves the right todetermine the final installation method, as may be structurally necessary buttakes no responsibility for the structural adequacy of the fixing surface.Structural adequacy of the fixing surface should be confirmed by the Customer’sbuilding designer or engineer.
16. Client Specification/SpecialOrders/Intellectual Property
16.1 Ifany materials are manufactured by the Supplier to the design or specificationof the Customer, the Customer warrants to the Supplier that any drawings,plans, specifications and other design information provided to the Supplier forthe manufacture of such materials are accurate and correct in all respects anddo not infringe upon the intellectual property rights of any third partyincluding any copyright, patents, designs or trademarks of the third party.
17. Retention of Title
17.1 Itis the intention of the Supplier and agreed by the Customer that ownership ofthe Materials shall not pass until: (a) the Customer has paid all amounts owingfor the particular Materials, and (b) the Customer has met all otherobligations due by the Customer to the Supplier in respect of all contractsbetween the Supplier and the Customer. 17.2 Receipt by the Supplier of any form of payment other than cash shall notbe deemed to be payment until that form of payment has been honoured, clearedor recognised and until then the Supplier’s ownership or rights in respect ofthe Materials shall continue. 17.3 Property and title to the materials will not pass to the Customer untilthese materials and all amounts owed to the Supplier by the Customer have beenpaid for in full until then: (a) The Customer will hold the materials as afiduciary and bailee for the Supplier; (b) where practicable the Materialsshall be kept separate and identifiable until the Supplier shall have receivedpayment and all other obligations of the Customer are met; and until such timeas ownership of the Materials shall pass from the Supplier to the Customer theSupplier may give notice in writing to the Customer to return the Materials orany of them to the Supplier. Upon such notice the rights of the Customer toobtain ownership or any other interest in the Materials shall cease; and (c) the Supplier shall have the right ofstopping the Materials in transit whether or not delivery has been made; and (d)The Customer may sell the materials in the ordinary cause of its business asbailee for the Supplier and will hold the proceeds of sale in a separateaccount on trust for the Supplier and account to the Supplier for thoseproceeds; and if the Customer fails to return the Materials to the Supplierthen the Supplier or the Supplier’s agent may enter upon and into land andpremises owned, occupied or used by the Customer, or any premises as theinvitee of the Customer, where the Materials are situated and take possessionof the Materials; and (e) the Customer shall not deal with the money of theSupplier in any way which may be adverse to the Supplier; and (f) the Customershall not charge the Materials in any way nor grant nor otherwise give anyinterest in the Materials while they remain the property of the Supplier; and (g)the Supplier can issue proceedings to recover the Price of the Materials soldnotwithstanding that ownership of the Materials may not have passed to theCustomer; and (h) until such time that ownership in the Materials passes to theCustomer, if the Materials are converted into other products, the parties agreethat the Supplier will be the owner of the end products.
18. Insurance
18.1 TheCustomer shall insure the materials against theft or any damage until such materialshave been paid for or until they are sold by the Customer which ever occursfirst and the Supplier will be entitled to call for details of the insurancepolicy. If the Customer does not insure the materials, or fails to supply thedetails of its insurance policy, the Customer will reimburse the Supplier forthe costs of any insurance which the Supplier may reasonably arrange in respectof the materials supplied to the Customer.
19. Customer’s Disclaimer
19.1 TheCustomer hereby disclaims any right to rescind, or cancel the contract or tosue for damages or to claim restitution arising out of any misrepresentationmade to the Customer by the Supplier and the Customer acknowledges that the Materialsare bought relying solely upon the Customer’s skill and judgement.
20. Defects
20.1 TheCustomer shall inspect all Materials and/or Works on delivery and shall withinseven (7) days notify the Supplier of any alleged defect, shortage in quantity,damage or failure to comply with the description or quote by giving writtennotice. 20.2 The Customer agrees to keep the materials referred to a notice given underthis clause (and in the case of shortages the remainder of the materialsdelivered) in the condition in which they are delivered until the Supplier hasinspected them. 20.3 The Customer shall afford the Supplier an opportunity to inspect the Materialswithin a reasonable time following delivery if the Customer believes the Materialsare defective in any way. 20.4 If the Customer shall fail to comply with these provisions the Materialsshall be presumed to be free from any defect or damage. 20.5 For defective Materials, which the Supplier has agreed in writing that theCustomer is entitled to reject, the Supplier’s liability is limited to either(at the Supplier’s discretion) replacing the Materials or repairing the Materials. 20.6 Materials are taken to be as ordered if: (a) The Customer does not givethe notice referred to in this clause; or (b) The materials referred to in anotice are used or damaged after delivery. 20.7 If the Supplier delivers less than the full quantity of materials theCustomer may not reject those materials delivered. 20.8 If the Supplier delivers extra or different materials the Customer mayreject only the extra or different materials.
21. Returns
21.1Returns will only be accepted provided that: (a) the Supplier has agreed inwriting to accept the return of the Materials; and (b) the Materials arereturned at the Customer’s cost within seven (7) days of the invoice date; and (c)the Manufacturer will not be liable for Materials which have not been stored orused in a proper manner; and (d) the Materials are returned in the condition inwhich they were delivered and with all packaging material, brochures andinstruction material in as new condition as is reasonably possible in thecircumstances. 21.2 The Supplier may (in its discretion) accept the return of Materials forcredit but this may incur a handling fee of 20% of the value of the returned Materialsplus any freight. 21.3 The following materials cannot be returned to the Supplier by the Customerfor credit: (a) Materials are specifically made, modified or imported for theCustomer; (b) Materials altered or damaged by the Customer.
22. Warranty
22.1 To the extent required by statute and subject to clause 15.2, the Supplier warrantsthat: (a) the Works shall be carried out in a proper and workmanlike manner andin accordance with the plans and specifications set out in the contractschedule; (b) all Materials supplied be good and, having regard to the relevantcriteria, suitable for the purpose for which they are used and that, unlessotherwise stated in this contract, those Materials will be new; (c) the Workswill be carried out in accordance with all relevant laws and legal requirements(including, but not limited to, the Building Act 1993); (d) the Works will becarried out in an appropriate and skilful way, with reasonable skill and care; (e)if the Works consists of the construction of a detached dwelling or areintended to renovate, alter, extend, improve or repair a home to a stagesuitable for occupation, that the detached dwelling or home will be suitablefor occupation when the Works are finished; and (f) if the contract states theparticular purpose for which the Works are required, or the result which theCustomer wishes the Works to achieve (so as to show that the Customer relies onthe Supplier’s skill and judgment) then the Works and any Materials will be reasonablyfit for that purpose or will be of such a nature and quality that they mightreasonably be expected to achieve that result. 22.2 Theconditions applicable to the warranty stated in clause 22.1 are: (a) thewarranty shall not cover any defect or damage which may be caused or partlycaused by or arise through: (i) the subsidence or movement of structures inwhich the Works have been installed; or (ii) faulty or improper installation byan outside party; or (iii) failure on the part of the Customer to properlymaintain Works; or (iv) failure on the part of the Customer to follow anyinstructions or guidelines provided by the Supplier; or (v) any use of the Worksotherwise than for any application specified on a quote or order form; or (vi)the continued use of the Works after any defect becomes apparent or would havebecome apparent to a reasonably prudent operator or user; or (vii) fair wearand tear, any accident or act of God; or (viii) the warranty shall cease andthe Supplier shall thereafter in no circumstances be liable under the terms ofthe warranty if the workmanship is repaired, altered or overhauled without theSupplier’s consent; or (ix) in respect of all claims the Supplier shall not beliable to compensate the Customer for any delay in either replacing orremedying the workmanship or in properly assessing the Customer’s claim. 22.3 ForMaterial not manufactured by the Supplier the warranty shall be the currentwarranty provided by the manufacturer of the Material. The Supplier shall beunder no liability whatsoever except for the express conditions as detailed andstipulated in the manufacturers warranty. 22.4 TheSupplier shall be entitled by its workmen, servants or agents to enter on theCustomers’ premises to inspect the alleged defective Materials. 22.5 The cost of the labour associated with the removal and replacement ofdefective Materials (including the cost of travel and accommodation) shall bethe responsibility of and at the expense of the Customer initially until it isverified by the Supplier to be a warranty claim at which time these expensesshall be the responsibility of and at the expense of the Supplier. 22.6 Any liability on the Supplier’s part shall be conditional on the Materialshaving been installed as per the Supplier’s installation guide by competentexperienced tradespeople and have since the date of delivery/installation beenproperly used, maintained and serviced in accordance with the Manufacturer’scare and maintenance manual and properly used for the purpose intended and norepairs, alterations thereon having been carried out without the Supplier’swritten consent.
23. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
23.1 Nothing in this agreement is intended to have the effect of contracting out ofany applicable provisions of the Commonwealth Trade Practices Act 1974 or theFair Trading Acts in each of the States and Territories of Australia, except tothe extent permitted by those Acts where applicable. 23.2 If under any law, any terms which apply to the supply of materials andservices under this agreement cannot legally be excluded, restricted ormodified then those terms apply to the extent required by that law.
24. Intellectual Property
24.1Where the Supplier has designed, drawn or written Materials for the Customer,then the copyright in those designs and drawings shall remain vested in theSupplier, and shall only be used by the Customer at the Supplier’s discretion. 24.2 The Customer warrants that all designs or instructions to the Supplierwill not cause the Supplier to infringe any patent, registered design ortrademark in the execution of the Customer’s order.
25. Default & Consequences Of Default
25.1 Ifthere is any default by the Customer in making due payment to the Supplier ofany monies owing by the Customer, or if an administrator, liquidator orprovisional liquidator or receiver and manager or controller is appointed inrespect of the Customer or the Customer goes into bankruptcy or commits any actof bankruptcy, or if there is a breach by the Customer of any of these termsand conditions then:- (a) All monies payable by the Customer to the Supplier shall at the Supplier’selection become immediately due and payable notwithstanding that the due datefor payment of any of the monies shall not have expired; (b) The Supplier may terminate this Agreement forthwith. 25.2 If the Customer defaults in payment of any invoice when due, the Customershall indemnify the Supplier from and against all costs and disbursementsincurred by the Supplier in pursuing the debt including legal costs on asolicitor and own client basis and the Supplier’s collection agency costs. 25.3 Without prejudice to any other remedies the Supplier may have, if at anytime the Customer is in breach of any obligation (including those relating topayment), the Supplier may suspend or terminate the supply of Materials to theCustomer and any of its other obligations under the terms and conditions. TheSupplier will not be liable to the Customer for any loss or damage the Customersuffers because the Supplier exercised its rights under this clause. 25.4 If any account remains overdue after thirty (30) days then an amount ofthe greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200)shall be levied for administration fees which sum shall become immediately dueand payable. 25.5 Without prejudice to the Supplier’s other remedies at law the Suppliershall be entitled to cancel all or any part of any order of the Customer whichremains unperformed in addition to and without prejudice to any other remediesand all amounts owing to the Supplier shall, whether or not due for payment,become immediately payable in the event that: (a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinionthe Customer will be unable to meet its payments as they fall due; or (b) the Customer becomes insolvent, convenes a meeting with its creditors orproposes or enters into an arrangement with creditors, or makes an assignmentfor the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similarperson is appointed in respect of the Customer or any asset of the Customer.
26. Cancellation
26.1 TheSupplier may cancel these terms and conditions or cancel delivery of Materialsat any time before the Materials are delivered by giving written notice. Ongiving such notice the Supplier shall repay to the Customer any sums paid inrespect of the Price. The Supplier shall not be liable for any loss or damagewhatever arising from such cancellation. 26.2 In the event that the Customer cancels delivery of Materials the Customershall be liable for any loss incurred by the Supplier (including, but notlimited to, any loss of profits) up to the time of cancellation.
27. Privacy Act 1988
27.1 TheCustomer and/or the Guarantor/s agree for the Supplier to obtain from a creditreporting agency a credit report containing personal credit information aboutthe Customer and Guarantor/s in relation to credit provided by the Supplier. 27.2 The Customer and/or the Guarantor/s agree that the Supplier may exchangeinformation about the Customer and the Guarantor/s with those credit providerseither named as trade referees by the Customer or named in a consumer creditreport issued by a credit reporting agency for the following purposes: (a) toassess an application by Customer; and/or (b) to notify other credit providersof a default by the Customer; and/or (c) to exchange information with othercredit providers as to the status of this credit account, where the Customer isin default with other credit providers; and/or (d) to assess the creditworthiness of Customer and/or Guarantor/s. 27.3 The Customer consents to the Supplier being given a consumer credit reportto collect overdue payment on commercial credit (Section 20K(1)(h) Privacy Act1988). 27.4 The Customer agrees that personal credit information provided may be usedand retained by the Supplier for the following purposes and for other purposesas shall be agreed between the Customer and Supplier or required by law fromtime to time: (a) provision of Materials; and/or (b) marketing of Materials bythe Supplier , its agents or distributors in relation to the Materials; and/or (c)analysing, verifying and/or checking the Customer’s credit, payment and/orstatus in relation to provision of Materials; and/or (d) processing of anypayment instructions, direct debit facilities and/or credit facilitiesrequested by Customer; and/or (e) enabling the daily operation of Customer’saccount and/or the collection of amounts outstanding in the Customer’s accountin relation to the Materials. 27.5 The Supplier may give information about the Customer to a credit reportingagency for the following purposes: (a) to obtain a consumer credit report aboutthe Customer; and/or (b) allow the credit reporting agency to create ormaintain a credit information file containing information about the Customer.
28. Enforceability and Jurisdiction
28.1 Inthe event that the whole or any part or parts of any clause in this Agreementis found to be unenforceable by a Court then such clause or part thereof shallbe to that extent severed from these terms and conditions without effect to thevalidity and enforceability of the remainder of these terms and conditions. 28.2 If any provision of these terms and conditions shall be invalid, void,illegal or unenforceable the validity, existence, legality and enforceabilityof the remaining provisions shall not be affected, prejudiced or impaired. 28.3 These terms and conditions shall be governed by and construed inaccordance with the laws of the State of Victoria. The parties submit to theexclusive jurisdiction of the Courts in Melbourne. 28.4 The parties agree that proceedings may be commenced in any court inMelbourne and consent to that court having jurisdiction by virtue of thisClause notwithstanding that the court would not have such jurisdiction withoutthis consent. 28.5 The Supplier shall be under no liability whatever to the Customer for anyindirect loss and/or expense (including loss of profit) suffered by theCustomer arising out of a breach by the Supplier of these terms and conditions. 28.6 In the event of any breach of this contract by the Supplier the remediesof the Customer shall be limited to damages. Under no circumstances shall theliability of the Supplier exceed the Price of the Materials. 28.7 The Customer shall not be entitled to set off against or deduct from thePrice any sums owed or claimed to be owed to the Customer by the Supplier. 28.8 The Supplier may license or sub-contract all or any part of its rights andobligations without the Customer’s consent. 28.9 The Supplier reserves the right to review these terms and conditions atany time. If, following any such review, there is to be any change to theseterms and conditions, then that change will take effect from the date on whichthe Supplier notifies the Customer of such change. 28.10 Neither party shall be liable for any default due to any act of God, war,terrorism, strike, lock out, industrial action, fire, flood, drought, storm orother event beyond the reasonable control of either party.
29. Notice
29.1 Notice required to be given by the Customer to the Supplier pursuant to theseterms and conditions may be delivered personally or sent by post to the creditmanager of the Supplier at the Supplier’s postal address at PO Box 4004, BlackRock North, Victoria 3193 and unless the contrary is proved shall be taken asdelivered when received by the Supplier. Notice to be given to the Customer bythe Supplier may be delivered personally or sent by post to the Customer’s lastknown address and shall be taken as delivered on the second business dayfollowing posting. 29.2 The Supplier’s invoices and statements are deemed to be received by theCustomer on the second business day after posting by ordinary pre-paid post.