Terms and Conditions
BASE CAMP AUSTRALIA PTY LTD (ACN 643 208 682)
TERMS AND CONDITIONS
1. Definitions and Interpretation
1. In the interpretation of this Agreement:
1. references to legislation or provisions of legislation includes changes or re-enactments of the legislation and statutory instruments and regulation issues under, the legislation;
2. words denoting the singular include the plural and vice versa;
3. words denoting individuals or persons include bodies corporate and vice versa;
4. references to documents or agreements also mean those documents or agreements as changed, novated or replaced;
5. words denoting one gender include all genders;
6. references to a party are intended to bind their executors, administrators and permitted transferees.
1. Company means Base Camp Australia Pty Ltd (ACN 643 208 682), including its successors, assigns, subsidiaries, affiliates and associates, which is the seller and supplier of the Goods and/or Services.
2. Confidential Information means all technical and commercial information, estimates, specifications, designs, drawings, installation strategies and the terms of this Agreement, received by the Customer from the Company, irrespective of whether or not the Customer contributed to any designs, drawings, specifications or installation strategies.
3. COVID-19 means the infectious disease caused by the coronavirus, SARS-CoV-2, which is a respiratory pathogen, and which has been declared a global pandemic by the Word Health Organisation.
4. Customer means the company and/or business and/or partnership and/or individual signing this Agreement.
5. Default Interest means a rate of 8% annual interest. If a Court of competent jurisdiction determines that the rate of 8% annual interest is not reasonable, the Default Interest rate will be read down to the pre-Judgment interest rate as determined by the Court pursuant to section 12 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). Nothing in the provision limits the application of post-Judgment Interest to be applied to the Judgment amount.
6. Default Notice means a notice issued by the Company to the Customer, in writing, setting out the default in payment or default in performance of duties by the Customer pursuant to the terms of the Agreement and a direction to remedy same within seven (7) days.
7. Estimate means any and all estimates of fees, charges and other fees provided by the Company to the Customer (this includes pre-pricing discussions, quotations and/or purchase orders).
8. Finance Clause means the terms contained in Annexure B to this Agreement.
9. Force Majeure Event means an event which is beyond the reasonable control of the party affected, whether foreseeable or otherwise, and which could not have been prevented by the party affected exercising reasonable diligence and includes an act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning strike, storm, tempest, drought, war or pandemic (declared), theft, invasion, act of foreign enemy, hostilities between nations, civil insurrection, explosion, government intervention, act or public enemy, sabotage, malicious damage, terrorism, civil unrest, contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel, confiscation, requisition, expropriation, prohibition, embargo, damage to property by or under the order of any government authority, strikes at a national level or industrial disputes at a national level, or any failure of the internet or telecommunications services, any failure of public service, absence of transport facilities, absence of raw material supplies, plant breakdown or failure of plant to perform to expected specifications, COVID-19 or any other national or international pandemics.
10. General Repairs means repairs to the Customer’s Goods by the Company at the request of the Customer that is not covered by a manufacturer or third-party warranty.
11. Goods means all the goods to be supplied by the Company to the Customer as are described in the Estimate and the description on such Estimate as modified by the Company prevails over all other descriptions including any specifications or enquiries of the Customer, the description of which may be amended from time to time at the sole discretion of the Company.
12. GST means the Goods and Services Tax prescribed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
13. Guarantors means any and all persons who sign the Personal Guarantee to accept, guarantee and be jointly and severally liable for the duties, obligations, liabilities and responsibilities of the Customer under the Agreement.
14. Installations means any and all installations to the Customer’s Goods by the Company at the request of the Customer, including but not limited to, installation of air-conditioning systems or other products.
15. Intellectual Property means copyright and all other intellectual property of the Company, including but not limited to, labelling, packaging, designs, drawings specifications, installation strategies, products, Goods and Services.
16. Parties means the Company and Customer entering into the Agreement.
17. Personal Guarantee means the terms contained in Annexure A to this Agreement.
18. Services means all the services to be supplied by the Company to the Customer as are described in the Estimate and the description on such Estimate as modified by the Company prevails over all other descriptions including any specifications or enquiries of the Customer. The Company may at its sole discretion amend the description of services in the Estimate. Further, it includes the servicing of Goods owned by the Customer as completed by the Company at the Customer’s request and includes, but is not limited to, a complete underbody inspection, brake check, bearing check and packed with grease, tyre pressure check, handbrake adjustment, all points greased, trailer washed and insurance work.
19. WA means the State of Western Australia.
20. Written Notice means notification by the Company to the Customer or the Customer to the Company, in writing, via either email or registered post. Noting that the issuing party must keep a record of the email or registered post tracking number for the notice to be effective.
2. Applicability and Acceptance of Terms
3. These Terms and Conditions (the Agreement) apply to the supply of Goods and/or Services by the Company to the Customer and all transactions between the Customer and the Company.
4. The Customer is taken to have accepted and be immediately bound, jointly and severally, by the terms of this Agreement on the earlier of the date on which, having been informed of the existence of the terms of this Agreement by its supply to the Customer, the date:
1. of the signing of this Agreement by the Customer, with a signing witness on the same day, and if the Customer is a Company or a Partnership, the signing and witnessing of the Personal Guarantee contained herein;
2. the Customer instructs the Company to provide any Goods and/or Services or continue to accept any Goods and/or Services from the Company.
5. If the Customer is a company within the meaning of the Corporations Act 2001 (Cth), the Customer agrees that the Personal Guarantee contained herein will be signed and witnessed, for the Customer’s obligations under this Agreement, by:
1. two (2) directors of the Customer; or
2. a director and company secretary of the Customer; or
3. for a proprietary Customer that has a sole director who is also the sole company secretary, that director.
6. If the Customer is in a partnership as defined under the Partnership Act 1895 (WA), or other relevant statute, the Customer acknowledges and agrees that a Personal Guarantee must be signed, by each partner of the partnership, to be liable for all the duties, obligations and responsibilities owed by the Customer under this Agreement to the Company, including all costs, charges, interest, mercantile fees and other charges.
7. The Customer acknowledges and agrees that all Guarantors shall be jointly and severally liable for the performance of all of the terms, covenants, and conditions of this Agreement owed by the Customer to the Company.
8. Once accepted, this Agreement will continue until the Agreement is terminated in accordance with the provisions herein.
9. The Company may amend the terms of this Agreement at any time, by way of thirty (30) days’ Written Notice to the Customer. Changes made under this clause will apply to any instructions to supply Goods and/or Services received by the Company on or after the effective date of the notice. Changes will not apply retroactively to the supply of Goods and/or Services where the relevant instructions were received by the Company prior to the effective date of the notice unless the Customer agrees in writing. If the Customer does not agree with any proposed amendments, the Customer may terminate this Agreement under clause 13.2 of this Agreement.
10. The Company reserves the right, but is not obliged, to:
1. refuse any Estimate;
2. limit the sales of the Goods and/or Services to any person, geographic region or jurisdiction;
3. limit the quantities of any Goods and/or Services per person, per household or per order; or
4. to discontinue any Goods and/or Services at any time.
3. Interaction of Documents
11. Possession of an Estimate does not constitute acceptance of an offer by the Company to provide any Goods and/or Services to the Customer. The Company is not liable to the Customer for any loss or damage if the Company does not provide the Customer with an Estimate.
12. Any Estimate provided to the Customer constitutes an offer by the Company to provide the scope of Goods and/or Services for the applicable fees therein estimated and is valid for any validity period set out in the Estimate (or otherwise for thirty (30) days from the date of the Estimate).
13. If the Estimate is not accepted within the validity period (as set out in clause 3.2, or if the Customer request changes to the Estimate, the Company reserves the right to modify the terms of the Estimate, including the scope of the Goods and/or Services, the Goods and/or Services to be supplied and/or the applicable fee estimation.
14. If the Estimate is accepted within the validity period, the accepted Estimate (including any written variations to the Estimate agreed between the parties) becomes subject to this Agreement and where any inconsistency exists between the Estimate and this Agreement, the terms of this Agreement will prevail.
15. The Company reserves the right to withdraw an Estimate at any time prior to the Customer’s acceptance for any reason, including changes in availability. The Company is not liable to the Customer for any loss or damage incurred from the withdrawing of the Estimate.
16. None of the Company’s employees, agents, or representatives are authorised to make any representations, statements, conditions, or agreements not expressed by the Company management or directors in writing, nor is the Company bound by any such unauthorised statements.
4. Goods and Services
17. The Company provides, and the Customer purchases, the Goods and/or Services on the terms and conditions contained in this Agreement.
18. The Company will provide the Goods and/or Services as specified in the Estimate in accordance with the terms of this Agreement, subject to any specific exclusions. The supply of Goods and/or Services is contingent on the Customer complying with this Agreement and is subject to availability.
19. Any descriptions, illustrations or performances contained in any catalogues, price lists, packaging or other advertising matters with respect to any Goods and/or Services do not form part of this Agreement.
20. Any storage, installation, maintenance or other guidelines given by the Company are estimates only and do not form part of this Agreement.
21. Unless otherwise specified in writing, the Company will provide the Goods and/or Services during the Company’s ordinary business hours. If Goods and/or Services are required outside of the Company’s ordinary business hours, the Company may notify the Customer of an increase of the Company’s fees in consideration of same, by providing the Customer with Written Notice of same. If the Customer does not accept the increase in fees, the Customer may elect to either have the Goods and/or Services provided during the Company’s ordinary hours of work or the Customer may terminate this Agreement in accordance with clause 13.2 herein.
22. If the Company incurs any costs or loss, because of anything within the Customer’s control, or anything outside of the Company’s control (including without limitation changes to legislation), the Company reserves its rights to amend the fees and any Goods and/or Services timelines to cater for any changes required or any costs incurred. The Company may also onforward the increase in costs to the Customer and the Customer accepts that it is liable to remit payment of any increased costs.
23. The Company may assign, license or subcontract all or any part of the Company’s rights and obligations under this Agreement without the Customer’s consent.
5. Fees and Payment
25. Any fee listed in the Estimate or otherwise provided to the Customer by the Company supersedes all other previously provided Estimates provided by the Company.
26. The Company reserves the right to amend the fees, rates, prices, and/or price lists applicable to its Goods and/or Services, from time to time, and without prior notice to the Customer (including to take account of changes in legislation).
27. Estimates are estimates only and cannot be relied upon as a contractual obligation or otherwise.
28. Once the Customer receives and accepts the Estimate, the Customer agrees to enter into this Agreement as prescribed under clause 2 herein.
29. Non-refundable Deposit
30. At the Company’s sole discretion, a non-refundable deposit may be required, in whole or in part, prior to the commencing and/or supplying of any Goods and/or Services by the Company to the Customer (Non-refundable Deposit). This Non-Refundable Deposit may be calculated as a fixed amount or a percentage of the fees and will be stipulated in the Estimate or otherwise prior to the Company commencing and/or supplying any Goods and/or Services. The Company will invoice the Customer for the Non-Refundable Deposit and will not commence and/or supply any Goods and/or Services until the Company has received the Non-Refundable Deposit as cleared funds.
31. If the Customer is required to obtain finance approval to remit payment of the Goods and/or Services, the Customer is required to disclose same to the Company and sign the Finance Clause. Should the Customer fail to obtain finance approval, the Customer agrees to notify the Company of same and agrees that the Company will retain in full the Non-Refundable Deposit. Further, the Company will not be held liable for any loss or damage suffered by the Customer.
32. Once the Agreement has been signed by the Customer and the Customer has remitted payment of the Non-Refundable Deposit, that deposit is non-refundable, and the Company will retain the deposit monies.
33. Invoice and Payment
34. The Company will issue to the Customer a tax invoice (or tax invoices, as applicable) for the fees payable for the Goods and/or Services and the Customer must remit payment of the tax invoice within the period stipulated in the tax invoice. If no period is stipulated within the tax invoice, the Customer must remit payment of the tax invoice within seven (7) days following the date of any invoice given to the Customer by the Company.
35. Time for payment for the Goods and/or Services is of the essence.
36. The Customer may pay by cash (only if the amount if below $10,000.00), electronic/online banking, or credit card, excluding American Express and Diners, or by any other method as agreed between the Parties. The Company reserves its right to pass on to the Customer any surcharge or fees or charges payable by the Company for accepting the relevant payment method.
37. The Customer accepts that the Customer is responsible for and must reimburse the Company for any transaction, processing, dishonour, or charge-back fees issued by a financial institution or payment gateway in the course of making payment.
38. Unless otherwise stated the fees do not include GST. In addition to the fees the Customer must pay to the Company an amount equal to any GST the Company must pay for the Goods and/or Services by the Company under this Agreement for the sale of the Goods and/or Services. The Customer must pay GST, without deduction or set-off of any other amounts, at the same time and on the same basis as the Customer pay the fees stipulated in the tax invoice/s. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the fees except where they are expressly included in the fees.
39. All fees and prices are in Australian dollars.
40. The Company may require, at its discretion, and the Customer agrees, that full payment of the fees is required prior to the delivery or supply of any Goods and/or Services by the Company, unless otherwise agreed by the Parties in writing.
41. Invoice disputes
42. Any claim or dispute with respect to an invoice does not give the Customer the right to suspend or delay payment of an invoice.
43. If the Customer reasonably believes that an invoice contains an error, and wishes to dispute that invoice, the Customer must:
1. notify the Company within seven (7) days of receiving the invoice, and in any event before the due date of the invoice;
2. pay the invoice within the time period stipulated at clause 5.11 herein; and
3. provide, by way of Written Notice, to the Company, detailed information about any disputed fees.
44. If the Customer fails and/or refuses to remit payment of an invoice, the Company reserves the right to suspend or terminate any supply of Goods and/or Services.
45. For the sake of clarity, if the Customer does not dispute an invoice under clause 5.20 within the required timeframe, the Customer is deemed to have accepted the invoice as true, correct and due and owing by the Customer to the Company.
46. Default in payment
1. If the Customer fails to pay any invoice by the due date, then without prejudice to the Company’s other rights or remedies, until payment is made in full (including for any accrued interest), the Customer agrees that the Company reserves its right to:
1. retain the Non-Refundable Deposit;
2. charge Default Interest on the amounts outstanding until payment in full or Judgment in a court or tribunal of competent jurisdiction, whichever occurs first;
3. immediately suspend the supply of any or all Goods and/or Services under this Agreement; and
4. postpone any delivery or commencement date.
2. Once the Customer defaults on payment of an invoice by the due date, all monies owing to the Company for Goods and/or Services becomes immediately payable as due and owing to the Company and the Customer indemnifies the Company against and is liable for:
1. all costs (including mercantile fees, solicitor’s fees, Customer costs, commercial agents, debt collection recovery fees, commissions, freight, surcharges, fees, insurances, accounting costs, loss of profit and interest); and
2. all fees due and payable to any third parties engaged to provide Goods and/or Services to the Customer.
3. If the Customer is in default of payment, the Customer irrevocably permits the Company, or any person authorised by the Company, in writing upon reasonable notice, to enter the Customer’s premises or the premises where the Goods are reasonably believed by the Company to be held on the Customer’s behalf, and for the Company, or its agents, to recover any Goods. The Customer also agrees to indemnify and hold the Company harmless for all reasonable costs and expenses of recovery of the Goods and/or losses, if any, on their resale.
47. The cost of any special packing and/or packing materials used in relation to the preparation of or delivery of Goods are at the Customer’s expense notwithstanding that such cost may have been omitted from any Estimate.
48. Any shipping, handling and/or delivery fees are payable by the Customer.
49. The delivery times made known to the Customer are estimates only and the Company is not liable for late delivery or non-delivery.
50. The Company is not liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery of the Goods.
51. The Company may at its option deliver the Goods to the Customer in any number of instalments unless the parties agree otherwise. If the Company delivers any of the Goods by instalments, and any one of those Goods are defective for any reason:
1. it is not a repudiation of this Agreement; and
2. the defective instalment is a severable breach that gives rise only to a claim for compensation for that specific instalment.
52. If any Goods are not in stock at the time of delivery, the Company, at its sole discretion, may offer the Customer the following options, to:
1. deliver the remaining Goods to the Customer and deliver the unavailable Goods when it comes back into stock;
2. supply an agreed substitute Goods; or
3. refund to the Customer the cost of the unavailable Goods.
53. The Customer must arrange for the Goods to be accepted on delivery by a person aged eighteen (18) years or older.
54. Provided that the Customer has paid for the Goods (including fees for handling, delivery etc.) upfront prior to delivery, if the Company is providing Goods to the Customer which is being delivered by a postage service, the title and ownership to those Goods passes to the Customer upon dispatch from the Company’s premises or post office, whichever the case may be.
55. Provided that the Customer has paid for the Goods (including fees for handling, delivery etc.) upfront prior to delivery, if the Company is providing Goods to the Customer which is being delivered by either an employee of the Company or a third-party delivery service (such as a courier), requiring the Customer to be available at the delivery address to accept the delivery, the title and ownership of the Goods passes to the Customer upon delivery to the Customer as evidenced by the signing of a delivery docket by the Customer. The Customer acknowledges and agrees that the Company is not liable for any loss or damage caused to the Goods during the delivery process and the Customer fully indemnifies the Company from any claim arising out of the delivery process.
56. Provided that the Customer has paid for the Goods (including fees for handling, delivery etc.) upfront prior to delivery, if the Company and the Customer agree that the Goods can be delivered to an address chosen by the Customer without the requirement for there to be a person present to receive the delivery at the time of the delivery, the title and ownership of the Goods passes to the Customer upon dispatch of the Goods from the Company’s premises and/or possession.
57. Until title of the Goods passes to the Customer as per clauses 6.8, 6.9 and 6.10 herein, the Company reserves the right to enter onto any site, premises or location on which the Goods are located, without liability for trespass, and retake possession of the Goods and keep or resell the Goods repossessed under this clause. If a Customer fails to remit payment of the Goods (in part or in full), the Company reserves the right to enter onto any site, premises or location on which the Goods are located, without liability for trespass, and retake possession of the Goods and keep or resell the Goods repossessed under this clause.
58. Provided that the Customer has paid for the Goods (including fees for handling, packing etc.) upfront and once Goods are available for collection following a warranty claim provided by a third-party (including but not limited to Services and/or Installations), the Company will notify the Customer, by way of Written Notice, that their Goods are ready for collection from a location determined by the Company, including, but not limited to, the Company’s premises.
59. The Customer acknowledges and agrees to collect the Goods within seven (7) days of date of the Written Notice.
60. If the Customer fails to collect the Goods within seven (7) days, the Customer acknowledges and agrees that the Company may (at its sole discretion):
1. provide an extension to the Customer for collection of the Goods for any period of time as determined by the Company;
2. charge the Customer for storage fees at an amount determined by the Company as reasonable for a period up to four (4) weeks;
3. if after four (4) weeks of storage the Customer continues to fail to collect the Goods, the Company reserves the right, without liability and being fully indemnified by the Customer for any loss or damage to the Goods, to:
1. cancel the purchase;
2. terminate the Agreement;
3. retain the Non-Refundable Deposit;
4. keep, resell or dispose of the Goods.
61. Any delivery timelines provided for the supply of the Goods and/or Services by the Company are a guide only and are not guaranteed fixed deadlines.
62. The Company is not responsible for delays in commencement of delivery of the Goods and/or Services caused by any of the following:
1. the Customer’s delay in providing the Company with necessary information;
2. the Customer’s failure to make available a person aged eighteen (18) years or older to accept delivery;
3. the delays, actions or inactions of the Customer or any third party;
4. changes in the scope of Goods and/or Services being provided by the Company (whether requested by the Customer, or required to cater for changes);
5. any Force Majeure Event;
6. regulations, laws or directives issued by a State or Federal Government limiting travel, exports, imports or any other regulation, law or directive causing delay on the delivery of the Goods and/or Services. These include, but are not limited to, restrictions and lockdowns enforced due to COVID-19;
7. the Customer’s failure to sign any documentation, including this Agreement, the Personal Guarantee and/or the Finance Clause;
8. the Customer’s failure to remit payment, and received as cleared funds by the Company, of the Non-Refundable Deposit;
9. the Customer’s failure to obtain finance pursuant to the Finance Clause; and/or
10. the Customer’s failure to remit payment of invoice or invoices, whichever the case may be.
63. If any of the preceding events cause a delay, the Company may, by Written Notice to the Customer, extend any commencement or delivery date by any period as the Company deems reasonably necessary.
64. If delivery is delayed due to:
1. the Customer’s unavailability or refusal to accept the Company’s Goods and/or Services (or if the Customer does not accept delivery of the Company’s Goods and/or Services within seven (7) days of the Company’s first delivery attempt); or
2. the Customer fails to provide delivery instructions within seven (7) days of the Company’s request for such instructions,
then, the Company may (at its sole discretion):
1. charge the Customer for storage fees up until the date of successful delivery; or
2. cancel the purchase, in which case the Company may refund the price paid upfront for the Goods, excluding delivery, handling, packing fees and the Non-Refundable Deposit.
65. Unless otherwise advised by the Company, all Goods and/or Services will be delivered from the Company’s premises.
9. Obligations and Warranties
4. The Customer must:
1. provide the Company with all information necessary for the Company to supply the Goods and/or Services;
2. give the Company not less than twenty-eight (28) days’ prior Written Notice of any proposed change of ownership and/or any other change in details which may affect the Company’s supply of the Goods and/or Services. The Customer is liable for any loss or damage incurred by the Company as a result of the Customer’s failure to comply with this clause;
3. comply with the National Privacy Principles under the Privacy Act 1988 (Cth) in relation to any personal information supplied to the Customer under this Agreement.
5. The Company does not provide any warranty against defects, loss or damage whether express or implied. To the extent that any of these conditions purport to provide a warranty against defects, loss or damage, it shall be read down.
6. The Customer warrants that:
1. the person/s signing this Agreement, on behalf of or as the Customer, has the power and authority to enter into this Agreement;
2. the Customer is not insolvent and the Customer, if a company under the Corporations Act 2001 (Cth), is not trading insolvently;
3. the terms of this Agreement create binding and valid legal obligations on the Customer;
4. the Customer is not bankrupt as defined under the Bankruptcy Act 1966 (Cth);
5. the Customer has obtained and will maintain all necessary licences or permits under all relevant laws and regulations in relation to the work anticipated to be performed by the Company (if any);
6. by providing the Goods and/or Services in accordance with the Customer’s directions will not cause the Company to contravene applicable laws or infringe any third-party rights.
7. If the Goods are not manufactured by the Company, any warranty against defects of the manufacturer of those Goods is accepted by the Customer and is the warranty against defects given to the Customer in respect of the Goods.
8. The Company will use commercially reasonable endeavours to assign to the Customer, on request by the Customer the benefit of any warranty or entitlement to the Goods that the manufacturer or a third-party has granted to the Company under any contract to the extent that the benefit of the warranty or entitlement is assignable.
9. Should a Customer wish to make a claim for warranty to the manufacturer or a third-party, the Customer must follow the direction of the Company to lodge a claim for warranty, including but not limited to, registering the warranty through the Company’s online platform and the manufacturer or third-party’s online platform. The Company reserves the right to amend, alter or change its warranty directions from time to time.
10. Except as provided in this Agreement, all express and implied warranties under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods and/or Services for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Company is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods and/or Service or arising out of the Company’s negligence or in any way whatsoever.
11. The Customer fully indemnifies, to the extent permitted by law, the Company from any loss, damage, defects, theft or injury arising out of:
1. the supply of Goods and/or Services; or
2. the delivery or transit of Goods and/or Services; or
3. the warranty provided by a manufacturer or third party for the Goods and/or Services; or
4. the exercise of a claim for warranty between the Customer and any manufacturer or third-party;
5. any repairs performed by the Company, under a warranty of a manufacturer or third-party, to the Customer’s Goods and/or Services;
6. the Services of the Customer’s Goods by the Company at the request of the Customer;
7. any Installations or General Repairs to the Customer’s Goods by the Company at the request of the Customer.
68. Health, Safety and Insurance
12. The Customer (or any related or associated entity) is responsible for providing a safe and healthy workplace/environment for all employees or third-parties of the Company who attend, on the request of the Customer, the Customer’s premises (including, but not limited to, the business or home of the Customer) to provide Goods and/or Services.
13. The Customer agrees to do everything reasonable to eliminate hazards and control or minimise risks to the health and safety of the Company’s employees and third-parties.
14. The Customer is responsible to obtain and maintain adequate insurance for theft, damage, loss or otherwise upon the dispatch of the Goods and/or Services from the Company’s premises.
10. PPSA, Security and Charge
15. In this clause, collateral, financing statement, financing change statement, security agreement, and security interest have the meaning given to them by the Personal Properties Securities Act 2009 (Cth)(PPSA).
16. The Customer acknowledges and agrees that this Agreement constitutes a security agreement for the purposes of the PPSA and creates a security interest in all of the Customer’s personal property (tangible or intangible) that the Customer has an interest in at the time of this Agreement, as well as property (tangible or intangible) acquired by the Customer after the entering into this Agreement to secure the payment of the Company’s fees or any other amount owing under this Agreement from time to time to the Company by the Customer.
17. The Company may register a security interest on the Personal Property Securities Register (PPSR) under the PPSA.
18. The Customer acknowledges and agrees that the Company has a security interest in the Goods and/or Services and the Company may register a security interest on the PPSR in any manner it chooses at its sole discretion over those Goods and/or Services, in whole or in part.
19. The Customer agrees that in accordance with section 125(3) of the PPSA, the Company may delay disposing of or taking action to retain the whole or part of the collateral beyond the reasonable period.
20. The Customer agrees that in accordance with section 275 of the PPSA, neither party is required to provide interested persons with information relating to the Company’s security interest, unless required under general law.
21. The Customer agrees and undertakes:
1. to sign any documents and/or provide further information reasonably required by the Company to register any financing statement or financing change statement on the PPSR;
2. to indemnify the Company for all expenses and/or costs incurred by the Company in registering any financing statement or financing change statement on the PPSR including the costs of amending, maintaining, releasing, and enforcing any security interest in the collateral;
3. not to register and/or make a demand to alter a financing statement in the collateral without the Company’s prior written consent;
4. to provide the Company with seven (7) days Written Notice of any change or proposed change to the Customer’s name (including company name or trading name, if applicable), address, contact details, or other changes in the Customer’s details as registered in the PPSR;
5. in accordance with section 115 of the PPSA, to contract out of enforcement provisions relating to collateral not used predominantly for personal, domestic, or household purposes;
6. in accordance with sections 142 and 143 of the PPSA, to waive any rights as a grantor and/or debtor;
7. in accordance with section 144 of the PPSA, to waive any rights to receive notices under sections 95, 118, 121, 130, 132 and 135 of the PPSA; and
8. in accordance with section 157 of the PPSA, to waive any rights to receive a verification statement.
70. Security and Charge
22. In consideration of the Company agreeing to supply the Goods and/or Services, the Customer charges the whole of the Customer’s undertaking, property, and assets (including without limitation all of the Customer’s interests, both legal and beneficial, in freehold and leasehold land) both current and later acquired, to secure the Customer’s performance of its obligations under this Agreement.
23. The Customer irrevocably appoints the Company and each of the Company’s directors (as applicable) as the Customer’s true and lawful attorney/s to do all things necessary to create and register each such charge, including but not limited to, signing any document on the Customer’s behalf.
24. Upon the Company’s demand, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to the Company to further secure payment of the money payable to the Company by the Customer.
25. If the Customer fails within fourteen (14) days of such demand to execute such mortgage or other instrument, then the Customer acknowledges and agrees that the Company may execute such mortgage or other instrument as the Customer’s attorney pursuant to clause 10.2.3 above.
26. The Customer indemnifies the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Company’s rights under clause 10 herein.
11. Confidentiality and Intellectual Property
27. The Customer and its employees are obliged to observe the utmost confidentiality of any and all Confidential Information received from the Company under this Agreement.
28. The recipient of any Confidential Information must keep such information secret and confidential and must not disclose it to any third party, wholly or in part, without the prior written consent of the Company. The Customer must take or cause to be taken such reasonable precautions as may be necessary to maintain secrecy and confidentiality and to prevent disclosure of Confidential Information, including obtaining confidentiality agreements from its employees, agents, other contractors or third parties.
29. Despite clause 11.1.2, either party may use or disclose Confidential Information strictly to the extent necessary to carry out its obligations under this Agreement, comply with any law, binding directive of a regulator or a court order, comply with the listing rules of any stock exchange on which its securities are listed, or obtain professional advice where the advisors agree to be bound by the same obligation of confidentiality.
30. For the avoidance of doubt, with respect to Confidential Information, the Customer will:
1. keep the Confidential Information with the utmost diligence and confidentiality and return it to the Company when requested to do so;
2. refrain from reproducing, copying, transmitting or revealing the Confidential Information to third parties, unless within the limits explicitly authorised in writing by the Company;
3. refrain from applying for patents in relation to the Confidential Information;
4. refrain from producing, re-producing or having third parties produce, or providing third parties with, for any reason, directly and indirectly, products using the Confidential Information;
5. to impose and guarantee observance of the obligations deriving from this clause on all officers, employees or contractors of the Customer.
72. Intellectual Property
31. All Intellectual Property is vested in the Company and shall remain vested in the Company and shall only be used by the Customer at the Company’s sole discretion and prior written approval.
32. The Customer acknowledges and agrees that any improvements, modifications or enhancements to the Intellectual Property made prior to or during the term of the Agreement, or other material developed by the Company in the course of supplying the Goods and/or Services prior to or during the term of the Agreement, will vest in and are owned solely by the Company, even if based on the Customer’s comments, requests, feedback and/or contributions.
33. Where the Company has designed, specified, or created product design drawings for the Customer, then the copyright in those designs and drawings shall remain vested in the Company alone, and shall only be used by the Customer at the Company’s sole discretion.
34. Where the Customer has supplied drawings, the Customer shall indemnify the Company for the specifications and design of the Goods and/or delivery of Services based on those drawings. Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of the Company then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods and/or Services shall not infringe the rights of any third party.
12. Disclaimers and Limitation of Liability
35. If any law or regulation, including but not limited to the Competition and Consumer Act 2010 (Cth)(CCA) and the Australian Consumer Law, confers rights and remedies on the Customer in relation to the provision Good and/or Services ordered by the Customer and delivered by the Company, which cannot be excluded, restricted or modified (Non-excludable Rights), the Company does not exclude any Non-excludable Rights but the Company does exclude all other conditions and warranties implied by custom, law or statute.
36. The Customer acknowledges and agrees that:
1. the Customer buys the Goods and/or Services relying solely upon the Customer’s own skill, judgement and evaluation of the Goods and/or Services;
2. the Company is not responsible and accepts no liability for obtaining any permits or licences required under the relevant laws and regulations for the usage of the Goods and/or Services supplied by the Company to the Customer;
3. the Company shall not be liable, to the extent permissible at law, for technical advice or assistance given in good faith for which it is not contractually bound to provide;
4. the Customer must satisfy itself as to whether the Goods and/or Services are suitable for the Customer’s use of those Goods and/or Services.
37. Other than as set out in this Agreement, and to the fullest extent permitted at law, the Company does not warrant or guarantee:
1. the supply of Goods and/or Services is uninterrupted or error free;
2. the Goods and/or Services for any standard, quality, fitness, suitability, performance, or compatibility;
3. that use of the Goods and/or Services will bring the Customer into compliance with any particular legislation or standard;
4. that the Customer will achieve any specific or general results by the use of the Goods and/or Services.
38. The Customer must satisfy itself as to the standard, quality, and suitability of the Goods and/or Services for the purpose(s) for which they are being purchased.
39. The Customer agrees to release and hold harmless, indemnify and defend the Company and its employees against any claim or liability from or in relation to:
1. the Customer’s breach of any law or infringement of any third-party rights;
2. the Customer’s breach of its obligations or warranties under this Agreement;
3. the Customer’s instructions causing the Company to be in breach of any law or to infringe any third-party rights;
4. any loss or damage caused or arising from the Goods and/or Services due to the Customer’s failure to adhere to the manufacturers guidelines, Company directions and/or product specifications and/or requirements of use.
40. The Customer agrees to release and hold harmless the Company and its employees against any claim or liability arising from or in relation to:
1. the acts or omissions of the Customer or any third party;
2. any Force Majeure Event;
3. any circumstances outside of the Company’s control;
4. the Company exercising any of its rights under this Agreement; and
5. actions taken in relation to this Agreement in accordance with the Company’s obligations at law or any order issued by a court of law or relevant government authority,
whether directly or indirectly arising in connection with the Goods and/or Services, even if the Company knew or should have known about the possibility of such claim or liability.
41. The Customer indemnifies the Company for any reasonable legal expenses the Company incurs as a result of the Customer’s breach of this Agreement, including expenses for enforcement, mercantile fees, interest, charges and/or solicitor’s professional fees, disbursements and outlays.
42. The Company is under no liability for any damages for failure of the Goods and/or Services notwithstanding adherence to any guidelines, unless specifically guaranteed in writing by the Company. Any such written guarantees are subject to recognised tolerances.
43. The Company is not responsible to the Customer or any person claiming through the Customer for any loss or damage to the Goods and/or Services in transit caused by any event of any kind by any person (whether or not the Company is legally responsible for the person who caused or contributed to that loss or damage).
44. Unless otherwise agreed, risk passes to the Customer at the time the Goods leave the Company’s premises. The Customer assumes all responsibility for filing claims for damage or loss against any third-party carriers and other agents. The Customer acknowledges and agrees to insure the Goods and/or Services against any loss or damage.
45. The Company reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the Customer, in which event the Customer will co-operate with the Company in asserting any available defences.
76. Limitation of Liability
46. The Company acknowledges that nothing in this Agreement excludes, restricts, or modifies or has the effect of excluding, restricting or modifying any Non-Excludable Rights.
47. Except as expressly set out in this Agreement or in respect of the Non-Excludable Rights, the Company gives no warranties or other representations under this Agreement, including but not limited to, the quality or suitability of the Goods and/or Services. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law.
48. If the Customer is a consumer within the meaning of the CCA, the Company’s liability is limited to the extent permitted by section 64A of Schedule 2.
49. If the Customer is not a consumer within the meaning of the CCA:
1. the Company’s liability, and the liability of its employees under this Agreement is (at the Company’s sole discretion):
1. limited to the value of any express warranty provided to the Customer by the Company in writing; or
2. limited to a refund (which may be provided in the form of credit for future services) or resupply of affected Goods and/or Services, or the cost of resupplying the affected Goods and/or Services (at the Company’s sole discretion); or
3. otherwise negated absolutely; and
2. indirect, special, pure economic, or consequential loss (whether arising under contract or tort) are expressly excluded under this Agreement.
50. If the Company is required to re-supply the Goods and/or Services under this clause or the CCA, but are unable to do so, the Company may, at its sole discretion, refund any money the Customer has paid for the Goods and/or Services (in whole or in part).
51. Despite any other provision to the contrary, the Customer agrees that the Company’s total liability and the total liability of the Company’s employees in connection with this Agreement, whether under contract or tort, will not in any circumstances exceed an amount equivalent to the money the Customer has paid to the Company for the affected Goods and/or Services under this Agreement.
52. The limitation of liability under clause 12.4 has effect in relation both to any liability expressly provided for under this Agreement and to any liability arising by reason of the invalidity or unenforceability of any terms under this Agreement.
13. Suspension and Termination
53. Without prejudice to any other remedies the Company may have, the Company may, at its sole discretion, suspend the supply of Goods and/or Services under this Agreement and issue the Customer with a Default Notice if the Customer is in breach of any obligation (including those relating to payment) under this Agreement.
54. Suspension under this clause does not affect the Customer’s liability to make payment and will immediately end when the issue giving rise to the suspension is remedied.
78. Early Termination by the Customer
55. The Customer may terminate this Agreement by issuing a Written Notice to the Company, with a minimum thirty (30) day notice period to cancel any one or more of the Goods and/or Services being supplied by the Company to the Customer under this Agreement.
56. The Customer acknowledges and agrees that it is liable for all costs, fees, interest, labour and any other further charges accrued by the Company prior to, during and after termination of this Agreement.
57. The Customer acknowledges and agrees that any deposit paid by the Customer prior to termination, upon termination, is non-refundable and will be retained by the Company as a Non-Refundable Deposit.
79. Early Termination by the Company
58. The Company may terminate this Agreement by issuing a Written Notice to the Customer, with a minimum thirty (30) day notice period, to cancel any one or more of the Goods and/or Services being supplied by the Company to the Customer under this Agreement.
59. The Customer acknowledges and agrees to fully indemnify the Company for any and all loss or damage suffered due to the termination by the Company, to the extent permitted by law.
80. Termination for Default
60. If the Customer is in breach of any of the terms of this Agreement, the Company, at its sole discretion, may:
1. immediately terminate this Agreement by issuing a Written Notice to the Customer to that effect; or
2. issue a Written Notice to the Customer demanding that the breach be remedied at terms so determined by the Company (at its sole discretion) and if not remedied, the Company may immediately terminate this Agreement as per 13.4.1(a) above.
61. If the Agreement is terminated under clause 13.4.1 above, the Company will retain the Non-Refundable Deposit in full.
62. If the Customer fails to obtain finance approval, the Company may immediately terminate this Agreement by issuing a Written Notice to the Customer to that effect and the Company will retain the Non-refundable Deposit in full.
81. Consequences of Termination
63. If either party exercises its rights under clauses 13.2 to 13.4 herein, then in addition to any other rights the Parties may have, they acknowledge and agree that:
1. the Company may issue to the Customer a tax invoice for any Goods and/or Services delivered and not previously invoiced, which will be immediately due and payable;
2. the Customer must pay all outstanding invoices whether or not due;
3. where the Customer has paid in advance for any Goods and/or Services, and except where the Company has exercised its rights under this Agreement, the Company may, at its sole discretion, refund to the Customer any unused portion of fees paid to the Company for those Goods and/or Services;
4. the Company retains the right to offset any amount payable to the Customer under this Agreement against any amount the Customer owes to the Company under this Agreement;
5. the Company will charge the Default Interest on any amounts owing by the Customer to the Company;
6. the Customer is liable to the Company for all fees, charges, interest, mercantile fees and solicitors’ fees incurred by the Company to recover any liquidated demand, debt or Goods and/or Services owed to the Company by the Customer.
64. A party not in default may pursue any other rights or remedies available at law against a defaulting party, subject to this Agreement and the liabilities, limitations and indemnities contained herein.
82. The Customer acknowledges and agrees that the Customer has carefully read, fully understood and agreed to be bound by all the provisions of this Agreement.
83. The Company will not be liable for any loss and/or damages suffered whatsoever, whether directly and/or indirectly, from the Customer’s failure to obtain independent legal advice in relation to this Agreement.
84. The Customer acknowledges and warrants that:
1. the Customer is not insolvent or a bankrupt at the time of entering into this Agreement;
2. the Customer is not and will not trade insolvently;
3. the Customer has not taken any action in contemplation of, or that would constitute the basis for, the institution of any insolvency or bankruptcy proceedings.
85. The Customer and the Guarantors jointly and severally authorise the Company to exchange information about the creditworthiness of either the Customer or the Guarantors with any credit reporting agency at any time during the term of this Agreement.
86. The Customer acknowledges and agrees that in entering into this Agreement, the Customer represents and warrants to the Company that all information and representations that the Customer, or any person acting on behalf of the Customer, has given in connection with this Agreement, are true and correct.
87. The Customer acknowledges and agrees that in entering into this Agreement, the Customer represents and warrants to the Company that the Customer has not failed to disclose to the Company anything relevant to this Agreement and that no court proceedings or dispute is current that may have an adverse effect on the Customer in performing its obligations under this Agreement.
88. The Customer acknowledges and agrees that it has the authority to enter into this Agreement and to be bound by the terms herein.
15. Independent Legal Advice
89. The Parties warrant that each party has had the opportunity to obtain legal advice in relation to the entering into and the terms contained in this Agreement.
16. Further assurances
90. The Parties agree to take all steps, execute all documents and do everything reasonably required by each other to give effect to the transactions contemplated by this Agreement.
17. Governing Law
91. This Agreement is governed by the laws of the State of Western Australia and is subject to any competent court or tribunal of the jurisdiction of the courts or tribunals in that State and courts or tribunals competent to hear appeals from those courts or tribunals.
92. The Parties shall be at liberty to plead this Agreement in any court of law or arbitral tribunal with competent jurisdiction in the State of Western Australia for any proceedings whatsoever arising out of or touching on or concerning the matters referred to or contained in this Agreement as limited by the limitation of liabilities and indemnities contained in this Agreement and to the fullest extent permitted by law.
93. Any delay or failure by the Company to enforce any rights in relation to a breach by the Customer will not be construed as a waiver of those rights and the Company reserves their right and entitlement to issue any proceedings or take any action to enforce their rights and entitlements under this Agreement at a later time.
94. If any provision of this Agreement is ruled by a court to be invalid or unenforceable, it will not affect the validity or enforceability of any other provision of this Agreement.
95. No variation by the Customer of this Agreement will be valid unless agreed to by the Company, in writing, and signed by each of the party’s or their authorised respective representatives and the Guarantors.
20. Entire Agreement
96. This Agreement contains the entire agreement between the parties and supersedes all previous negotiations or agreements in relation to the subject matter of this Agreement.
97. The Company may assign or novate its rights and obligations under this Agreement at any time by providing Written Notice to the Customer stating that effect. Upon assignment or novation, the Company’s rights and obligations are binding on and will benefit the Company’s respective representatives, successors and assigns.
98. The Customer must not assign or novate its rights and obligations under this Agreement without the prior written consent of the Company.
22. Limitation on Set-off Claim
99. The Customer is not entitled to set-off against or deduct from the fees any sums owed or claimed to be owed to the Customer by the Company.
23. Force Majeure
100. If a party is affected by a Force Majeure Event, they must immediately notify the other party of the circumstances by way of Written Notice.
101. The parties’ obligations under this Agreement are suspended for the duration of and to the extent that they are affected by the Force Majeure Event. However, either party may end this Agreement if the Force Majeure Event continues for more than twenty-one (21) days.
102. If the Agreement is terminated due a Force Majeure Event, the Customer acknowledges and agrees that the Company will retain the Non-Refundable Deposit in full.
103. This Agreement may be executed in any number of counterparts. Each counterpart is an original, but the counterparts together are one and the same agreement.
PERSONAL GUARANTEE AND INDEMNITY
1. Definitions and Interpretation
1. The definitions and interpretations of the Agreement between the Company and the Customer applies to the terms of the guarantee and indemnity (Personal Guarantee).
2. Liability of several Guarantors
2. When there is more than one guarantor under this Personal Guarantee:
1. the term “Guarantors” in the Agreement refer to each of the Guarantors and to all of them;
2. their obligations as Guarantors are joint and several;
3. the Company may enforce this Personal Guarantee against all or any of them;
4. any notice or demand may be served on all of them by serving any one of them;
5. this Personal Guarantee remains binding on the other Guarantors; even if:
1. any guarantor fails to execute the Guarantee or to enter into this Guarantee;
2. this Guarantee is not binding on one of the Guarantors;
3. the Company releases any of the Guarantors from liability under this Personal Guarantee.
3. The Guarantors sign and execute this Personal Guarantee on the terms contained herein and the Guarantors acknowledge and agree to be jointly and severally liable for all of the rights, obligations, responsibilities and liabilities of the Customer under the Agreement as owed to the Company.
4. Entering into the Personal Guarantee
4. In consideration of the Company agreeing to provide the Goods and/or Services subject of the Agreement to the Customer at the request of the Customer, the Guarantors enter into this Personal Guarantee in favour of the Company on the terms specified in the Agreement and herein.
5. Scope of guarantee
5. The Guarantors guarantee and accept liability of the punctual payment of all fees, charges, interest, mercantile fees, solicitor’s fees, outgoings, GST and all other money payable by the Customer to the Company pursuant to the terms of the Agreement.
6. The Guarantors guarantee and accept liability for the observance and performance of all the Customer’s obligations as specified in the Agreement.
7. The Guarantors guarantee and accept liability for:
1. any and all damages for breaches of the Agreement by the Customer;
2. any and all defaults of the Agreement by the Customer;
3. breaches of any essential terms of the Agreement by the Customer;
4. repudiation of the Agreement;
5. the Company’s loss or damage in the event that the Customer terminates the Agreement;
6. the Company’s reasonable legal and other expenses of seeking to enforce those obligations against the Customer and the Guarantor, recovering possession of Goods and/or terminating the Agreement;
7. loss or damage consequent on disclaimer of the Agreement on the Customer’s insolvency, as if this Agreement had not been disclaimed.
6. Scope of indemnity
8. The Guarantors fully indemnifies the Company and agrees to keep the Company always indemnified against all loss arising out of or relating to the Agreement, including without limitation, all losses, costs, charges, damages, interest, mercantile fees, solicitor’s fees, other charges and expenses which the Company may incur for or by reason of any default or breach of the Agreement by the Customer or by reason of the termination of the Agreement for any reason and further agrees that any money which is not recoverable for any reason (including, without limitation, disability, immunity, infancy, incapacity or any Statute of Limitations), whether or not the Company knew or ought to have known, are recoverable from the Guarantors as sole or principle debtors and must be paid to the Company on demand.
7. Legal capacity
9. This Personal Guarantee is a continuing guarantee and indemnity and (without limiting the foregoing) are not affected by:
1. any change whatsoever which takes place in the legal capacity or in the legal rights or obligations of the Customer or any of the Guarantors;
2. the fact that the Customer or any of the Guarantors is a trustee, nominee, partnership, firm, joint holder or joint venturer.
8. Claim under guarantee
10. The Company is entitled to require the Guarantors to pay to the Company any outstanding debt or other amount or to compensate the Company for any loss or damage without the Company having made any demand or instituted any proceedings against the Customer in respect of such claims or breaches.
9. Guarantee not discharged
11. This Personal Guarantee is not discharged and the Company’s rights against the Guarantors are not affected by any of the following:
1. the granting of any indulgence or extension of time by the Company to the Customer or to the Guarantors;
2. the Company’s neglect or failure to enforce the Agreement against the Customer or waiver of any breaches or defaults under the Agreement;
3. the total or partial release of liability of the Customer or of a Guarantors by the Company;
4. the entry into any arrangement, composition or compromise relating to this Agreement between the Company and the Customer or any other person;
5. the variation of any provision of the Agreement between the Company and Customer without the Guarantors consent;
6. the death or bankruptcy or winding up of the Customer or the Guarantors;
7. the Customer’s liability under the Agreement, or this Personal Guarantee, being or becoming invalid, illegal or unenforceable, including through any act, omission or legislation;
8. the disclaimer of the Agreement following the Customer’s insolvency;
9. the Company has exercised its right to re-possession of the Goods or any other rights;
10. this Personal Guarantee is wholly or partly unenforceable.
12. In respect of any payment made by or on behalf of the Customer under the Agreement that is void or is voided for any reason, the Guarantors remain liable under this Personal Guarantee as if that payment had not been made.
13. Until the Company’s claims against the Customer and against the Guarantors have been fully satisfied, the Guarantors holds on trust for the Company any money received by the Guarantors under any arrangement, composition, assignment, liquidation or bankruptcy of the Customer.
11. Notification of changes relating to guarantor
14. The Guarantors must promptly advise the Company or, if there is a managing agent, that agent, of any changes, during the term of the Agreement, to:
1. the Guarantors telephone or facsimile number of the Guarantors email address;
2. the Guarantors private address and telephone number.
15. Any notice required or permitted under the Agreement or this Personal Guarantee, must be given to the Company as a Written Notice.
1. Definitions and Interpretation
1. The definitions and interpretations of the Agreement between the Company and the Customer applies to the terms of the Finance Clause.
2. The Customer must remit payment of a deposit in the amount advised by the Company for the Goods and/or Services (the Deposit).
3. Once the Customer has remitted payment of the Deposit, if applicable, the Customer must give the Company Written Notice if it is required to obtain finance from a financial institution to remit payment for the Goods and/or Services. The Written Notice must be provided to the Company within seven (7) days of payment of the Deposit sum and must contain the following details:
1. the amount that the Customer is applying to obtain from the financial institution;
2. the name of the institution from which the Customer is seeking finance;
3. the date on which the Customer applied for finance; and
4. the date upon which the outcome of the application is due from the financial institution.
4. Once the Customer receives the outcome of the application for finance from the financial institution, within three (3) days of the outcome, the Customer acknowledges and agrees to issue a Written Notice to the Company advising of the outcome of the application.
5. If the Customer has successfully obtained finance, the Customer must remit payment of any and all amounts for the Goods and/or Services in the time frame stipulated by the Company and the Company may, at its sole discretion, allow for payment to be made by way of instalments.
6. If the Customer was not successful in obtaining finance, the Customer must by way of the Written Notice at paragraph 2.3, advise the Company why the application for finance was rejected and the Customer acknowledges and agrees that the Deposit will be retained in full by the Company as a Non-Refundable Deposit. The Company may, at its sole discretion, refund the Non-Refundable Deposit, in part or in whole, to the Customer if the Company believes that the Customer has taken all reasonable steps to obtain the finance approval and if the application for finance approval was submitted to a third-party financing brokerage or in-house financing company as recommended to the Customer by the Company.
7. The Parties agree that the Company may, at its sole discretion, allow the Customer to file a new application for finance from a financial institution. Should the Company at its sole discretion grant the Customer an extension to file a new application for finance, the Customer must follow the procedure at clauses 2.2 to 2.5 herein. There is no obligation on the Company to grant an extension to obtain new finance to the Customer.