1       Definitions and interpretation

1.1     Definitions

In this Agreement:

Agreement means in order of prevalence:

(a)     these Terms and Conditions; and

(b)     the terms and conditions of a Purchase Order;

Approval means any permit, licence, consent, certificate or other approval obtained or required in relation to anything to be done by the Supplier under this Agreement;

Australian Standards means any Australian Standard (as amended or replaced) issued by Standards Australia applying directly or indirectly to the Items;

Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Australia;

Change of Control means any change in the legal or equitable ownership of a party;

Claim means any claim, action, suit, cause of action, cost, expense, demand, liability, whether by way of indemnity, under contract, in equity, under statute, in tort or otherwise and any other liability of any nature;

Confidential Information means:

(a)             this Agreement and the information within this Agreement;

(b)             information identified as being confidential when it is disclosed by a party;

(c)             all other information disclosed belonging to a party or its Related Bodies Corporate not publicly available at the time of disclosure other than by a breach of this Agreement; and

(d)             information pertaining to the business, property or affairs of the parties or their Related Bodies Corporate, which is the property of that party or its Related Bodies Corporate including business, financial, customer and employee information, supplier information, processes, statements, formulae, trade or business secrets, drawings and data not publicly available at the time of disclosure other than by a breach of this Agreement.

Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the date of this Agreement as a likely result of breach of the Agreement:

(a)             incidental, special, remote or unforeseeable loss or damage;

(b)             loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss caused by the Supplier’s wilful or negligent acts or omissions, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this agreement;

(c)             costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or

(d)             loss or damage of the nature set out above in clauses (a) to (c) (inclusive) that is incurred or suffered by or to a third party.

Customer means MIJASU PTY LTD, its Officers and its Related Bodies Corporate;

Defective Items means Items which do not comply with the Specifications or are otherwise defective in design, performance, purpose, workmanship or makeup;

Deliverable State means the Items are in a state acceptable to the Customer on delivery;

Delivery means the delivery of the Items in accordance with the Delivery Terms;

Delivery Address means the location for delivery of the Items as set out in the Purchase Order;

Delivery Date means the date for Delivery as set out in the Purchase Order;

Delivery Terms means the terms agreed between the parties for the transport and Delivery of the Items, as outlined in clause 5 and particularised a Purchase Order;

Force Majeure Event means an act or occurrence beyond the reasonable control of a party, including, acts of nature, acts of war or riots, weather occurrences, labour disputes or government action, unavailability of shipping services, mis-delivery or non-delivery, other than through the negligence of a party, or the acts of a Governmental Agency, which delays or prevents a party from meeting its obligations under this Agreement;

Items means the Items matching the Specifications in a Purchase Order supplied or to be supplied by the Supplier to the Customer;

Governmental Agency means any government or any governmental, semi-governmental, fiscal, monetary, judicial or statutory agency, authority, tribunal, commission, body or other entity, with power, authority or jurisdiction in any part of the world;

GST means the Items and services tax imposed by A New Tax System (Items and Services) Act 1999, the rate of which is multiplied to any payment;

Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or any event that has a substantially similar effect to the above events;

Intellectual Property means all rights conferred under statute, common law or equity, wherever in the world subsisting, in relation to copyright, trade marks, design or patents, patentable inventions and designs, whether existing now or in the future and whether or not registered or registrable, and includes any rights subsisting in or relating to trade secrets, know how, inventions, discoveries, geographical indications of origin, semiconductor and circuit layouts, programming tools, object code, source code, microcode, mask works, methods, techniques, recipes, formulae, algorithms, modules, libraries and any application for registration or registration of those rights, whether existing at the date of this Agreement or in the future;

Law means the common law (including equity), current and future Acts of the Parliament of Australia and related regulations or statutory instruments;

Legal Requirement means any Australian statute, ordinance, regulation or by-law, and includes any licenses, permits and consents necessary for the Supplier to supply the Items;

Moral Rights means all present and future rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed, rights to alter or delete all or part of the works, rights to use works or an adaption of the works and rights of a similar nature conferred by statute anywhere in the world;

Officer means each director, secretary, manager and authorised representative of a party;

Personnel means an employee, contractor, sub-contractor or agent of a party;

Price means the price for the Items as set out in a Purchase Order;

Purchase Order means the document in the form determined by the Customer, containing the particulars of Items and the terms of purchase including the Price, the description and Specification of the Items and the Delivery Terms;

Related Body Corporate has the meaning given to it in the Corporations Act 2001 (Cth);

Specifications means the descriptions and specifications for the Items and for the packaging and labelling of the Items, as set in a Purchase Order;

Supplier means the party identified in a Purchase Order as the Supplier, its Officers and its Related Bodies Corporate;

Tax includes any tax, levy, impost, assessment, deduction, charge, rate, stamp duty or compulsory loan or withholding levied, imposed, assessed or collected by or under any legislation or Governmental Agency, together with any associated interest, penalty, fine, charge and fee or other amount;

Terms and Conditions means these terms and conditions of purchase, as amended from time to time;

Variation means:

(a)             the inclusion of other Items as Items to be supplied by the Supplier under this Agreement;

(b)             a change in the character or quality of the Items to be supplied under this Agreement; or

(c)             an increase or decrease in the quantity of Items to be supplied under a Purchase Order.

1.2    Interpretation

In this Agreement:

(a)      if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(b)      words such as including or for example do not limit the meaning of the words preceding them;

(c)      a reference to a document or instrument, including this Agreement, includes all of its clauses, paragraphs, recitals, parts, schedules and annexures;

(d)      a party includes the party’s successors and permitted transferees and assigns and if a party is an individual, includes executors and personal legal representatives;

(e)      an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits them all jointly;

(f)       no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement;

(g)      all monetary amounts are expressed in Australian Dollars ($AUD); and

(h)      parties must perform their obligations on the dates and times fixed by reference to Melbourne, Victoria.

2       Supply of Items

2.1     Agreement to purchase and sell

(a)      These Terms and Conditions apply to all transactions between the Customer and the Suppler relating to the supply of Items.

(b)      The Supplier must not enter into an agreement with the Customer for the supply of Items if the Supplier does not agree to these Terms and Conditions or if the Supplier does not have authority to act on behalf of any party for whom the Supplier is supplying the Items.

2.2    Purchase Order

(a)      If the Customer wishes to purchase Items from the Supplier, it may issue the Supplier a completed Purchase Order.

(b)      If the Purchase Order is consistent with these Terms, the Supplier must:

(i)       not refuse the Purchase Order;

(ii)      supply the Items in accordance with these Terms and Conditions and the terms of the Purchase Order;

2.3    Notice of acceptance of Purchase Order

A Purchase Order is deemed accepted unless the Supplier rejects the Purchase Order by notifying the Customer in writing within two (2) Business Days of receipt of the Purchase Order.

2.4    Separate Agreement

Upon acceptance or deemed acceptance of a Purchase Order, a separate agreement between the Supplier for the supply of Items is formed and each Purchase Order will incorporate these Terms.

2.5    No minimum

(a)      The Supplier acknowledges the Customer has no obligation to issue any Purchase Orders to the Supplier or purchase any Items from the Supplier.

(b)      The Customer gives no guarantee, representation or warranty on the volume of Items the Supplier will have to supply under this Agreement (if any).

2.6    No exclusivity

This Agreement is non-exclusive and either party may contract to supply or procure Items from any third party including Items identical or similar to the Items.

2.7    Supplier’s terms and conditions

Any Supplier terms and conditions will not be incorporated into this Agreement unless incorporated strictly in accordance with clause 24 and any terms and conditions otherwise purported to be incorporated (including Supplier terms and conditions contained in any online ordering process, whether or not acknowledged by the Customer) will be void and unenforceable.

2.8    Legal Requirements, Australian Standards and Approvals

In supplying the Items, the Supplier must:

(a)      comply with all Legal Requirements in relation to the manufacture, supply or delivery of the Items;

(b)      ensure the Items comply with the relevant Australian Standards relating to quality assurance and have been approved for manufacture and sale by all relevant Governmental Authorities;

(c)      comply with industry practice in the supply of Items the same as or similar to the Items; and

(d)      at the Supplier’s cost, obtain and keep in full force for the Term all Approvals for the supply of the Items.

3         Variation by Customer

3.1     Notice of Variation

The Customer may issue a notice to the Supplier requesting the Supplier perform a Variation (Notice of Variation).

3.2     Obligations in relation to Notice of Variation

(a)      Within five (5) Business Days of receiving a Notice of Variation, the Supplier must provide the Customer with notice setting out these details:

(i)       if the Variation will delay delivery of the Items and, if so, the delay period;

(ii)      the cost of the Variation; and

(iii)      an adjusted Price.

(b)      If the Customer elects to proceed with the Variation, the Supplier must perform the Variation within the time specified in the Notice of Variation.

3.3    No entitlement

Unless the Supplier has received a direction which complies with this clause 3, the Supplier will have no entitlement to a Variation or any adjustment to the Price of the Items as a consequence of performing a Variation.

4         Cancellation

4.1     The Customer may cancel a Purchase Order at any time by notice to the Supplier.

4.2     The Customer may cancel any unshipped portion of a Purchase Order without further obligation, except to pay the Items actually shipped or delivered in accordance with the Delivery Terms prior to the Customer giving notice of the cancellation.

5        Delivery Terms

5.1     Delivery

(a)      Unless specified in the Purchase Order, the Supplier is responsible for Delivery, including arranging and procuring transport and carriage of the Items to the Delivery Address.

(b)      The Supplier must ensure each delivery of Items is accompanied by the documentation, if any, specified in a Purchase Order (Transport Documentation).

(c)      The Items must be delivered to the Delivery Address during usual business hours, unless otherwise stated in the relevant Purchase Order.

5.2    Notice of intended delivery

(a)      The Supplier must give the Customer at least twenty-four (24) hours’ notice of the time of Delivery.

(b)      The Customer may at its absolute discretion extend the time for Delivery of the Items by notifying the Supplier of a later Delivery Date.

5.3    Cost of Delivery

(a)      The Supplier is responsible for the cost of delivery (including all transport costs and reasonably appropriate insurance cover).

(b)      The cost of delivery will be included in the Price for the Items.

5.4    Packaging and labelling

The Supplier will package, mark and label the Items at its own cost before Delivery:

(a)      in accordance with the Specifications or any requirements stated in a Purchase Order; or

(b)      otherwise in a manner reasonably expected of the Supplier having regard to the nature of the Items.

5.5    Delay

(a)      If the Items are not delivered by the Delivery Date, the Customer may without liability to the Supplier:

(i)       cancel the Purchase Order; or

(ii)      refuse to accept Delivery of the Items.

(b)      The Supplier must take all reasonable steps to minimise the effect of any delay on the supply of Items.

(c)      The Supplier must indemnify the Customer against any Claim arising out of or in connection with any delay on the supply of Items.

6       Title and risk

(a)      Legal and equitable title in, and risk to, the Items will pass to the Customer when the Items are in a Deliverable State.

(b)      The Customer is not deemed to have accepted the Items upon taking delivery.

7       Inspection

Subject to the Customer providing the Supplier with reasonable written notice, the Supplier must permit the Customer and its Personnel to access the Supplier’s premises or any premises where the Items are stored or manufactured to inspect the Items or do anything reasonably necessary to determine the Supplier’s compliance with Australian Standards and all Laws.

8       Defective Items

(a)    Within a reasonable time of delivery, the Customer will inspect the Items.

(b)    If any part of the Items supplied are Defective Items, the Customer must provide notice to the Supplier, including:

(i)        notice of the defect found in the Defective Items;

(ii)        the nature of the defect; and

(iii)       any action the Customer requires the Supplier to take,

(Defect Notice).

(c)    Upon receipt of a Defect Notice, the Supplier must at the Customer’s election:

(i)        replace the Defective Items (Replacement Items);

(ii)        provide a credit note to the Customer equal to the price paid by the Customer for the Defective Items; or

(iii)       issue a full refund to the Customer equal to the price paid by the Customer for the Defective Items.

(d)    If the Customer elects to receive Replacement Items, the Supplier must:

(i)        deliver the Replacement Items to the Customer within 14 days of the Defect Notice being issued; and

(ii)        pay for all transport costs and insurance for the Replacement Items.

(e)    In addition to any other rights and remedies available to the Customer under this Agreement or at Law, if the Supplier supplies Defective Items, the Customer may terminate any Purchase Order not fulfilled or this Agreement.

(f)     If the Customer rejects the Items or terminates any Purchase Order and/or this Agreement in accordance with this clause 8, the Supplier is liable for any costs in connection with the Items, including the cost of inspections, storage, handling, transport and disposal of the Items.

9       Warranties

9.1     Warranties on Items

On the date that the Agreement is formed, and every subsequent day for the duration of the Agreement, the Supplier represents and warrants the Items:

(a)      are new on Delivery;

(b)      are of merchantable quality;

(c)      are fit for the purposes for which the Items are ordinarily used;

(d)      are manufactured in a good and workmanlike manner;

(e)      conform with the requirements set out in this Agreement;

(f)       are free from any defects in materials, manufacture and workmanship; and

(g)      comply with all Laws, Australian Standards, Legal Requirements.

9.2    Supplier warranties

The Supplier represents and warrants:

(a)      unencumbered title to the Items will pass to the Customer on delivery;

(b)      it has full corporate right, power and authority to enter into this Agreement and fulfil its obligations under this Agreement;

(c)      in supplying the Items, it will not be in breach of any obligation owed to any person;

(d)      it has all property and Intellectual Property rights necessary to supply the Items;

(e)      performance of its obligations under this Agreement will not breach, or cause the Customer to breach, the Intellectual Property rights of a third party;

(f)       it has the skills, expertise and personally to supply the Items;

(g)      in supplying the Items, it complies and will continue to comply with all Laws; and

(h)      it holds all Approvals required for it to perform its obligations under this Agreement and it will perform its obligations under this Agreement in accordance with these Approvals.

9.3    Reliance on Supplier

The Supplier agrees:

(a)      the Customer has engaged the Supplier in reliance on the Supplier’s representations and warranties set out in this Agreement; and

(b)      in issuing a Purchase Order, the Customer has relied on the Supplier’s acceptance of, and ability to satisfy, the terms of that Purchase Order.

10      Payment and invoicing

10.1   Fixed Prices

(a)      Fixed Price

The Price is fixed and is subject to increase unless agreed by the parties in writing.

(b)      Prices inclusive

Unless provided otherwise in a Purchase Order and subject to clause 10.2, the Price includes all charges, fees, costs, expenses and Taxes relating to supply and delivery of the Items.

10.2   GST

(a)      In this clause, words defined in A New Tax System (Items and Services) Tax Act 1999 (Cth) have the same meaning as their definition in that Act.

(b)      Unless expressed to the contrary in this Agreement, all prices and amounts are exclusive of GST.

(c)      If GST is payable in respect of a supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to and at the same time as any consideration for the supply, provided the supplier has given the recipient a tax invoice.

10.3   Invoicing and payment

(a)      Conditions precedent

The Customer is not required to pay for the Items until:

(i)       satisfaction of all requirements under this Agreement; and

(ii)      the Supplier renders a valid tax invoice to the Customer.

(b)      Invoices

The invoice must be made out to the Customer and must specify the:

(i)       description of Items delivered;

(ii)      quantity of Items delivered;

(iii)      Delivery Date;

(iv)     Delivery Address; and

(v)      Purchase Order number.

(c)      Payment

Unless otherwise stated in a Purchase Order, and subject to the requirements of clause 10.3(a), the Customer will pay the Price within thirty (30) days of the end of the month in which the invoice was issued to the Customer.

10.4  Payment on account

Payment is not evidence of the value of the Items or an admission of liability or that the Items are satisfactory.

10.5   Release on final payment

(a)      Final payment under this Agreement or any Purchase Order constitutes all the moneys finally due and payable from the Customer to the Supplier on any account.

(b)      The Supplier releases and discharges the Customer from all liability of whatever kind upon final payment of the Items.

10.6   Right to set-off

The Customer may set-off or deduct from any moneys due to the Supplier all or any part of any moneys owed by the Supplier to the Customer.

10.7   Bar on late claims

If the Supplier fails to provide the Customer an invoice within three (3) months of the Delivery Date, the Supplier waives any right to claim payment from the Customer in respect of those Items.

11      Insurance

11.1   Policies of insurance

The Supplier must maintain these policies of insurance with a reputable insurer:

(a)      public liability insurance for an amount not less than $20 million for any one event and with the interest of the Customer noted as principal;

(b)      product liability insurance for an amount not less than $20 million;

(c)      insurance in accordance with the requirements of the relevant workers’ compensation legislation in each State relevant to the manufacture and delivery of the Items; and

(d)      adequate insurance to cover the transport, delivery and unloading of Items from the Supplier to the Delivery Address.

11.2   Certificates of currency

If requested by the Customer, the Supplier must provide the Customer with certificates of currency demonstrating compliance with clause 11.1.

12      Sub-contracting

(a)      The Customer must not subcontract its obligations under this Agreement to a third party without the prior written consent of the Customer.

(b)      The Supplier will not be relieved of its obligations under this Agreement because of any subcontracting of the whole or part of its obligations under this Agreement.

13      Force Majeure

13.1   Force Majeure Event

If a Force Majeure Event prevents a party from carrying out its obligations under this Agreement (Affected Party) and the Affected Party:

(a)      promptly provides written notice to the other party giving details of the Force Majeure Event, the extent to which it cannot perform its obligations and the likely or anticipated duration of the Force Majeure Event; and

(b)      uses all necessary endeavours to circumvent the Force Majeure Event as quickly as possible,

the Affected Party’s obligations will be suspended for the period of time they are affected by the Force Majeure Event.

13.2  Right to terminate

If a Force Majeure Event continues for more than five (5) Business Days, the parties will meet in good faith to attempt to achieve a resolution. If this cannot be resolved within a further five (5) Business Days then, where the Supplier is the Affected Party, the Customer may terminate this Agreement immediately by written notice to the Supplier.

14      Security interest

(a)      Terms defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the same meaning in this clause.

(b)      If the Supplier believes a Security Interest arises under this Agreement, it must notify the Customer at least five (5) days before the Supplier takes steps to register such Security Interest on the PPS Register.

(c)      Within ten (10) days of the earlier of:

(i)       the expiry or termination of this Agreement; or

(ii)      receipt of the Price,

the Supplier will at its cost, procure the removal from the PPS Register each Security Interest it has registered in respect of the Items, and must provide the Customer with verification of the removal of the Security Interests pursuant to section 157 of the PPSA.

(d)      The parties agree that, if Chapter 4 of the PPSA applies to the enforcement of the Supplier’s security interests, these provisions of the PPSA will not apply to that enforcement:

(i)       section 120;

(ii)      section 126;

(iii)      section 123; and

(iv)     section 128

15      Confidentiality

15.1   Protection of Confidential Information

Each party must:

(a)      keep the Confidential Information of the other party confidential, safe and secure at all times;

(b)      only use, reproduce or disclose the other party’s Confidential Information to the extent necessary for the purposes of this Agreement;

(c)      not disclose the Confidential Information of the other party to any person except:

(i)       to its advisors, employees, subcontractors and agents who need to know the Confidential Information for the purposes of this Agreement;

(ii)      as required to be disclosed by law; or

(iii)      if the other party has given its written consent to the disclosure or use.

15.2   Disclosure of Confidential Information

Each party must not disclose the other party’s Confidential Information to any person except:

(a)      to its Personnel who need to know the Confidential Information for the purposes of this Agreement;

(b)      as required to be disclosed by Law or the rules of a stock exchange;

(c)      if the other party has given its written consent to the disclosure or use; or

(d)      as permitted by this Agreement.

15.3   Return of Confidential Information

Within ten (10) Business Days of the expiry or termination of this Agreement or at the request of the party to whom the Confidential Information belongs, each party must immediately deliver, erase or destroy all electronic and physical documents in its possession or control that contain Confidential Information.

15.4   Return exceptions

If a party must retain the other party’s Confidential Information for the purpose of:

(a)      complying with any Law;

(b)      litigation;

(c)      internal quality assurance and record-keeping; or

(d)      performing its obligations or exercising its rights under this Agreement,

it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 15.3 promptly after it is no longer required for this purpose.

16      Intellectual Property

(a)      The Supplier:

(i)       assigns to the Customer all Intellectual Property created or developed under or in connection with supplying the Items; and

(ii)      must procure that any Intellectual Property of the type described in clause 6.1(a) which vests in or is acquired by any third party is unconditionally assigned to the Customer by the relevant third party.

(b)      If the Items use or reproduce any Supplier Intellectual Property, the Supplier grants the Customer an irrevocable, transferable, royalty free, non-exclusive, worldwide licence to use and reproduce that Supplier Intellectual Property in connection with the Customer’s use and commercialisation of the Items.

(c)      The Supplier unconditionally and irrevocably consents (and will procure such consents from its Personnel) to any act or mission that would otherwise infringe any Moral Rights in (or in connection with) the Items, whether before or after the consent is given for the benefit of the Customer.

17      Exclusion, limitation of liability and indemnity

17.1   Consequential Loss excluded

To the fullest extent permitted by Law, the Customer will not be liable to the Supplier for any Consequential Loss arising out of or in connection with this Agreement.

17.2   Aggregate liability

To the fullest extent permitted by Law, the total aggregate liability of the Customer and its Personnel arising under or in connection with this Agreement is limited to the Price under the Purchase Order from which the liability arose.

17.3   Indemnity

The Supplier must indemnify the Supplier against all Claims or loss or damage (including Consequential Loss) suffered or incurred by the Supplier or any third party arising directly or indirectly from:

(a)      delayed Delivery of the Items;

(b)      failure to supply the Items, including handling, packing, transporting, unloading or loading with due care, skill and diligence to avoid damage to any property, premises or the Items;

(c)      any negligent or wilful act or omission of the Supplier in connection with the performance of the Supplier’s obligations under this Agreement;

(d)      any breach of this Agreement by the Supplier;

(e)      any infringement of the rights of a third party, including Intellectual Property rights, by the Supplier; and

(f)       any penalty imposed for breach of any Legal Requirement in connection with the performance of the Supplier’s obligations under this Agreement,

except to the extent that the loss was directly caused or contributed to by the Customer.

18      Dispute resolution

(a)      The parties must use reasonable endeavours to resolve any dispute through negotiation between them.

(b)      In the event a party provided the other a written notice of a dispute, and the dispute cannot by negotiated between the parties, either party may refer the dispute for arbitration through the Australian Commercial Disputes Centre (ACDC).

(c)      The arbitration must be conducted in accordance with the UNCITRAL Arbitration Rules (the Rules).

(d)      The terms of the Rules are deemed incorporated into this Agreement.

(e)      The appointing authority will be the Australian Centre for International Commercial Arbitration.

(f)       The number of arbitrators will be one (1).

(g)      The place of arbitration will be Melbourne, Australia.

(h)      The language to be used in the arbitral proceedings will be English.

(i)        The parties must continue to perform the Agreement notwithstanding the existence of a dispute.

19      Termination

19.1   Termination without cause

(a)      The Customer may terminate this Agreement or a Purchase Order without cause by giving the Supplier twenty (21) days written notice at any time (Termination Notice)

(b)      If the Customer provides a Termination Notice to the Supplier in accordance with clause 19.1(a) after a Purchase Order has been accepted and before all of the Items are delivered, the Supplier will be entitled to payment for the portion of Items delivered on a pro rata basis and reimbursement of reasonable costs and expenses that the Supplier has incurred in respect of Items not yet delivered to the Customer.

19.2   Termination for cause

(a)      The Customer may terminate this Agreement by notice with immediate effect if the Supplier:

(i)       commits a material breach of the Agreement that is not capable of remedy;

(ii)      commits a material breach of the Agreement capable of remedy, and does not remedy that breach within ten (10) Business Days after receipt of notice of the breach;

(iii)      suffers an Insolvency Event; or

(iv)     undergoes any Change of Control.

(b)             If the Customer terminates this Agreement under clause 19.2, then the Customer:

(i)       will not be required to make any payment in respect of Items not yet supplied in accordance with this Agreement on the effective date of termination;

(ii)      may, without prejudice to any other remedy it may have, recover from the Supplier all money paid for any Items not yet supplied.

20      Notices

20.1   General

Unless this Agreement expressly states otherwise, a notice, consent, approval, waiver or other communication (Notice) must be in writing.  A Notice may be given by hand delivery, post or by email.

20.2  When effective

A Notice under clause 20.1 will be deemed received:

(a)      if hand delivered, at the time of delivery;

(b)      if sent by post, six (6) Business Days after posting;

(c)      if sent by email, once it enters the recipient’s email server, unless the sender receives an automated notification that the email has not been received by the intended recipient, in which case the notice is deemed to not have been served at the time of sending,

unless a Notice is received after 5.00 pm on a Business Day in  which case that Notice is deemed to have been received at 9.00 am on the next Business Day.

21     Relationship between parties

Unless provided to the contrary in this Agreement, no party is authorised to bind another party and nothing in this agreement is to be construed as creating an employment, agency, partnership, fiduciary or joint venture relationship between the parties.

22     Entire Agreement

This Agreement represents the entire agreement between the parties and supersedes all prior discussions, negotiations, understandings and agreements in relation to the Items.

23     Assignment

(a)      The Customer may assign or otherwise deal with all or any part of its rights or obligations under this Agreement at its discretion

(b)      If an assignment occurs under clause 23(a), the Customer will notify the Supplier of the assignment once the assignment has taken place.

(c)      The Supplier may not assign, novate, sell, transfer, licence, mortgage, charge or otherwise encumber any right or obligation under this Agreement without the prior written consent of the Customer, which consent must not be unreasonably withheld.

24     Waiver and variation

A provision, or right, power or remedy created under it, may not be varied or waived except in writing signed by the party or parties to be bound.

25     Counterparts

This Agreement may be signed in any number of counterparts.  All signed counterparts taken together constitute one agreement.

26      Rights, powers and remedies

The rights, powers and remedies in this Agreement are besides, and do not exclude or limit, any rights, powers or remedies provided by Law or equity.

27      Severability

If any provision is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid, without affecting the validity or enforceability of the remaining provisions of this Agreement.

28      Survival

The rights, obligations and indemnities in clause 9, clause 15, clause 16, clause 17, clause 19.2(b), clause 27 and clause 32  survive termination or expiry of this Agreement.

29      No merger

On termination or expiry of this Agreement, the rights and obligations of the parties will not merge and any provision not fulfilled remains in forces.

30      Further steps

Each party must, at its own expense, do all things and execute all documents to give full effect to this Agreement and the transactions contemplated by it.

31      Legal costs and expenses 

Each party must pay its own costs of negotiating, preparing and executing this Agreement and performing its obligations under this Agreement.

32      Governing law and jurisdiction

(a)      This Agreement is governed by the laws in force in Victoria, Australia.

(b)      The parties submit to the exclusive jurisdiction of the courts of Victoria.