General Terms and Conditions of Sale

1.1 General Price and Credit Terms

Where a written quotation has been issued to the Customer, the selling price is the price specified in the quotation. Quoted pricing includes all discounts. In any other case, the Vendor’s selling price is the price specified in the price list as at the date of dispatch. Unless otherwise stated, the selling price is Ex Works, in Australian dollars and does not include GST. The selling price is also free of all other taxes, tariffs, duties, shipping, insurance, and other costs. All charges associated with the delivery, installation and commissioning are the responsibility of the Customer.

The Vendor may at any time change its price list to reflect, among other things, changes in exchange rates or the imposition of any duties, levies or other taxes and the Customer is bound by those changes. The Vendor may charge a reasonable handling fee for all orders delivered to the Customer. The Customer must accept any errors or omissions in invoicing and, where applicable, the amended pricing and pay the difference within the approved terms of trade.

All customers are subject to credit limits established by the Vendor. Payment terms are thirty (30) days net from the date of invoice or earlier if the approved credit limit has been exceeded. If no credit limit has been approved or the approved credit limit is insufficient to fulfil the Customer order(s), those orders will be subject to 50% deposit payable on order placement and 50% balance payable prior to dispatch of Products or Services to the Customer.

The Vendor accepts payments via Electronic funds transfers (EFT) as well as via Visa and MasterCard. There will be a 1.5% surcharge on all credit card transactions.

1.2 GST

(a) If any goods and services tax, value added tax or any other like tax ("GST") is imposed on any supply of Products and Services or any other matter or thing done under or in connection with this Agreement, the Customer must pay any such GST which is invoiced by the Vendor.

(b) Unless provided in advance, following payment of any such GST, the Vendor will provide the Customer with a tax invoice in accordance with any law imposing such GST.

(c) If the Customer pays GST invoiced by the Vendor, and any claim or demand is made against the Vendor for the payment of a further amount of GST in respect of the Supply of the Products and Services or any other matter or thing done under or in connection with this Agreement, the Customer must pay such further GST within 7 days of the Vendor providing an invoice for such GST.

1.3 Late Payment

If any part of the Vendor invoice is in dispute, the balance will remain payable and must be paid when due. The Customer has no right to set-off any claim against the Vendor from money owing without prior agreement in writing. Unless otherwise agreed in writing, if the Customer does not pay amounts invoiced by the due date, then in addition and without prejudice to any rights or remedies available to the Vendor:

(a) interest will be payable by the Customer on the amount due at the rate of 12% per annum (or such other rate as the Vendor notifies to the Customer from time to time) accruing daily from the due date until the Vendor receives payment in full;

(b) all amounts invoiced to or owing by the Customer will become immediately due and payable;

(c) any rebate, discount, or allowance provided to the Customer will be cancelled;

(d) The Vendor reserves the right to withhold any or all Products and Services including any service reports, testing results or other services or documentation;

(e) The Vendor reserves the right to vary or withdraw any approved credit limit and/or terms of trade, cancel or suspend any unfilled orders or cease providing the services, terminate any contracts with the Customer and demand immediate payment of any moneys due and outstanding under those contracts, lodge a caveat or other similar instrument over any property of the Customer and/or institute any debt recovery process at the Customer’s cost and expense; and

(f) to the maximum extent permitted by law, the Vendor accepts no liability whatsoever in connection with its performance or non-performance of this Agreement.

2.1 Order placement

To obtain supply of the Products or Services, the Customer must issue a valid Purchase Order to the Vendor. The Purchase Order must specify the quantity and nature of the Products or Services required by the Customer, and the requested delivery date and address. The Purchase Order must also set out any required specification for the Products if the Products are not in the Vendor’s then current Product range. The Vendor may, in its absolute discretion, accept or reject a Purchase Order. A Purchase Order is not binding until it is accepted by the Vendor.

2.2 By issuing the Purchase Order, the Customer acknowledges that Purchase Order constitutes a legally binding agreement between the Customer and the Vendor under these Terms and Conditions. The Vendor's acceptance of that Purchase Order, either by acknowledgment or by commencement of performance, signifies the Vendor's agreement to all terms and conditions stated herein. Once an order has been placed by the Customer and accepted by the Vendor, it cannot be subsequently cancelled by the Customer without explicit agreement by the Vendor in writing.

2.3 The supply of Products or Services is subject to availability. The Vendor reserves the right to suspend or discontinue the supply of Products or Services to the Customer. If the Vendor is unable to supply the Customer’s order in full, these Terms and Conditions continue to apply to any part of the order supplied.

2.4 Delivery

Unless otherwise agreed in writing by the Vendor, delivery is Ex Works. The Customer is to provide full insurance coverage for the transportation of the Products and if requested provide documented evidence of this to the Vendor prior to dispatch. If a delivery date is specified, that date is an estimate only and the Vendor is not liable for any delay in delivery.

2.5 The Vendor will use its reasonable endeavours to deliver the Products and Services to the Customer in accordance with the lead time specified in the quotation supplied by the Vendor. However, the time of delivery shall not be of the essence and the Vendor will have no liability to the Customer (whether for loss or damage or otherwise) if, notwithstanding such endeavours, there is a delay in delivery.

2.6 If the Products and Services are not delivered in accordance with the Delivery Requirements, the Customer is not relieved from its obligations to purchase and pay for the Products and Services.

Time is not of the essence in relation to delivery and the Customer must accept delivery and pay for the Products and Services delivered including transport costs, if applicable, even if they are delivered after any specified delivery date.

2.7 Delivery costs (otherwise called freight) do not include offloading and positioning of Products. This is the responsibility of the Customer and depending on the size and weight of Products purchased, may require additional resources such as manpower and/or a forklift, crane etc. Any additional costs incurred for offloading and positioning of Products upon delivery must be negotiated directly between the Customer and the freight forwarder.

2.8 If the Customer does not accept delivery, or in the case of Ex Works delivery does not collect the Products within seven (7) days of the agreed dispatch date, the Customer shall be in default without notice of default being required, and the Vendor shall in any case be entitled to invoice for and receive the agreed price. The Vendor shall then also be entitled, without prejudice to its other rights under applicable law, to store the Products at the Customer’s expense and risk. All costs arising therefrom, including but not limited to increases in duties, levies, insurance premiums, taxes and charges, shall be payable by the Customer.

2.9 If a situation described above arises, and, despite being given a reasonable time by the Vendor, the Purchaser still fails to accept/collect the Products or fails to do so in time, the Vendor shall, without prejudice to its other rights under applicable law, these Terms and Conditions and/or the Agreement, be entitled to:

a) store the Products until actual delivery/collection and charge the Customer for the reasonable costs (including handling and insurance) of storage; and/or

b) sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for any excess over the price paid by the Customer (if any) or charge the Customer for any shortfall.

2.10 Withholding Delivery

If the Vendor employees and/or authorised representatives are required to attend any premises as directed by the Customer to install, commission or apply any Products or perform any Services, the Customer must ensure safe access and appropriate policies and procedures are in place and followed and generally implement good industry practice (including occupational health and safety policies and risk assessments for any dangerous or potentially dangerous activities) and act consistently with the Vendor’s policies as required. This includes ensuring that safe access and all safety equipment, communications equipment or other items are provided, maintained and are fit for their intended purpose at all times and with relevant hazard and risk assessments completed at the appropriate intervals.

The Vendor employees and/or authorised representatives reserve the right to withhold delivery of any Products and Services, cancel any order for Products and Services or discontinue supplying Products and Services to the Customer until they are satisfied that the above listed conditions have been met.

In addition to any other rights and remedies available to it, the Vendor will be entitled to withhold delivery of any Products and Services, cancel any order for Products and Services or discontinue supplying Products and Services to the Customer until such time as any amounts due and owing by the Customer to the Vendor are paid in full.

2.11 Return of Products

The Customer will have a period of 14 days after delivery of the Products to inspect the Products. If all or some of the Products do not conform with the specifications in the quotation, the Customer may return such Products with the prior approval of the Vendor and within 21 days after their delivery, or as otherwise agreed in writing by the Vendor.

The Products must be returned to the Vendor in an unsoiled, undamaged and re-saleable condition and, where appropriate, in the original packaging. A reasonable handling fee for any returned Products will be charged to the Customer. Any Products not so returned (including but not limited to if they are defective, damaged during delivery or are short delivered) will be deemed to be accepted in full by the Customer.

In the event that the Customer subsequently wishes to return any undamaged and unused Products, the Customer acknowledges that the Vendor may refuse to accept such Products. If the Vendor agrees in writing to accept the return of such Products, the Customer agrees to pay a handling and restocking fee to be determined by the Vendor upon inspection of such Products. This fee will be deducted from the refund amount. The Customer acknowledges that this fee covers the costs associated with processing of the return and restocking of the Products.

3.1 Risk.

Unless otherwise specified or agreed by the Vendor in writing, the risk of loss and damage to the Products passes to Customer on delivery of the Products to Customer or to Customer's carrier or agent, whichever occurs earlier.

The Customer must insure the Products at its cost from delivery of the Products until they are paid for in full against all such risks as are usual or common to insure against in a business of a similar nature and size.

3.2 Title

Title to any Products supplied will not pass to the Customer until the Vendor has received payment in full price for all the Products supplied by the Vendor to Customer under these Terms and Conditions.

In the meantime, the Customer takes custody of the Products and retains them only as fiduciary agent and bailee of the Vendor.

Until the supplied Products have been paid for in full:

(a) to the extent possible, the Customer must store the Products in a manner that shows clearly they are the property of the Vendor, maintain records relating to the Products, secure the Products from risk, damage and theft and ensure that the Products are kept in good and serviceable condition.

(b) the Customer may sell the Products, in the ordinary course of its business, but only as fiduciary agent of the Vendor. The Customer must not represent to any third party that the Customer is acting in any capacity for or on behalf of the Vendor and the Customer has no authority to bind the Vendor to any contract or otherwise assume any liability for or on behalf of the Vendor. The Customer receives all proceeds (including any proceeds from insurance claims) in trust for the Vendor and must keep the proceeds in a separate bank account until all liability to the Vendor is discharged.

(c) if the Customer uses the Products in some manufacturing or construction process of its own or of a third party, the Customer must hold in trust for the Vendor that part of the proceeds of the manufacturing or construction process as is equal to the amount owing by the Customer to the Vendor at the time of receipt of the proceeds.

Within 7 days of the Vendor's request, the Customer must return to the Vendor all unused Products covered by the request for which the Vendor has not received payment in full.

To the extent permitted by law and until the supplied Products are fully paid for, the Vendor:

(a) retains title to the Products;

(b) has by itself or by its agent the unrestricted right to enter the Customer's premises, or the premises of any related body corporate or agent where the Products are located, without liability for trespass or any resulting damage, and to re-take possession of the Products; and

(c) is entitled to keep or re-sell any Products so re-possessed.

4.1 Warranties

To the maximum extent permitted by law, the only warranties applicable to the Products supplied by the Vendor will be as follows:

(a) if the Products supplied are not manufactured by the Vendor, any express guarantee or warranty made available by the manufacturer of those Products will be the only guarantee or warranty given to the Customer in respect of those Products; and

(b) for Products manufactured by the Vendor, the Vendor will, subject to clause 4.3, remedy any Products which are established to be defective within the period of twelve (12) months after delivery of the Products or fifteen (15) months from completion of the factory acceptance test, whichever is earlier.

(c) Warranty is conditional to and will be provided only if the following conditions are met:

(i) such defects have arisen solely from faulty material or workmanship;

(ii) the Products have not been subjected to maltreatment or interference, including modification, adjustment or interference or any other kind from the Customer or any third party such as an independent consultant;

(iii) the defect has not arisen as a result of inattention of misapplication by the Customer or any third party such as an independent consultant;;

(iv) the Products have been used, operated and maintained on the conditions and for the purpose specified and in accordance with all instructions or recommendations of the Vendor;

(v) all other Products, accessories or equipment used by the Customer in conjunction with the Products are manufactured by or approved by the Vendor; and

(vi) any defective Products are promptly returned to the Vendor.

For the avoidance of doubt, the warranties provided by the Vendor shall not apply, and to the maximum extent permitted by law the Vendor shall have no liability whatsoever, in respect of any Products and Services which Customer requires the Vendor to supply to the specification, or according to the instructions or directions of the Customer or the Customer's agent or contractor.

4.2 Only Warranties

To the maximum extent permitted by law, other than the express warranties set out in clause 4.1, all other conditions, representations, warranties and guarantees, whether express or implied, by statute or otherwise, in relation to the Vendor’s Products and Services are expressly excluded.

4.3 Limitation of Liability

(a) The limitations on the Vendor' liability contained in these Terms and Conditions are made to the extent permitted by law.

Nothing in these Terms and Conditions restricts the effect of any warranties or conditions which may be implied by the Competition and Consumer Act 2010 (Cth) (as amended) or any other law which cannot be excluded, restricted or modified. Subject to those laws, to the extent to which the Vendor is entitled to do so, its liability under such implied conditions or warranties will be limited at the option of the Vendor to any one or more of the following:

(i) in the case of Products:

(A) the replacement or repair of the relevant Products, or the supply of equivalent Products; or

(B) the payment of the cost of replacing or repairing the Products, or of acquiring equivalent Products; and

(ii) in the case of Services:

(A) supplying of the Services; or

(B) the payment of the cost of having the Services supplied again.

(b) In either case, the Vendor’s liability shall not exceed the Purchase Price of the Products and Services provided.

(c) The Vendor makes no promise and gives no guarantee that repair facilities or parts will be available in respect of Products supplied.

(d) To the maximum extent permitted by law, the Vendor is not liable in any way whatsoever, whether in tort (including negligence), contract, breach of statute or otherwise, for any incidental, indirect, special or consequential losses or damages or economic loss, including any loss by the Customer, loss of business revenues or loss of profits by the Customer, in relation to the Products and Services whether under this Agreement or otherwise.

(e) To the maximum extent permitted by law, the Vendor will have no liability whatsoever in connection with or as a consequence of any withholding of Products and Services pursuant to clause 1.3 or clause 2.2 (including the withholding of any service reports, testing results or other services or documentation), whether such liability be civil or criminal, whether under contract, tort or otherwise, and whether in respect of any claim for loss of profit, data, goodwill or business, interruption to business, failure to realise anticipated saving, or for any consequential, indirect, special, punitive or incidental damages.

(a) Customer acknowledges that:

(i) the Intellectual Property Rights are the property of the Vendor; and

(ii) the Customer must not use, modify, adapt, translate or in any other way deal with the Intellectual Property Rights without the prior written consent of the Vendor.

(b) Except as may be expressly provided in any consent granted by the Vendor to the Customer in accordance with clause 5 (a)(ii), the Customer may not do any of the acts and will not have any of the powers referred to in section 26 of the Trade Marks Act 1995 (Cth) (as amended).

(c) For the purposes of clauses 5(a) and 5(b),

“Intellectual Property Rights” means all rights of the Vendor (including rights of ownership, rights or licenses to use, rights arising through use and rights the subject of applications to register) in and to all patents, designs, trademarks, copyright, processes, business reputation, trade secrets, know-how and confidential information or other similar legally enforceable rights anywhere in the world, used or intended to be used by the Vendor, whether or not registered or registrable.

Without prejudice to any other provisions hereof, the Vendor shall not be liable for any delay in performance or failure to perform any of its obligations, if such performance is prevented, restricted or affected by a force majeure event or any other cause beyond the Vendor’s control.

7.1 Without prior written consent on its part, the Vendor shall not be obliged to accept returns from the Customer. If the Products are returned without the prior written consent of the Vendor, their dispatch and storage after their return shall be at the Customer’s expense and risk.

7.2 The Vendor may at its discretion refuse the Products for return for any reason other than the conditions contained herein. Without limiting the provisions of any other condition within these terms and conditions, the Vendor’s liability with respect to claims shall not exceed the Purchase Price of the Products. The Vendor may at its discretion replace the Products which are the subject of a claim, at no extra costs to the Customer, and the replacement Products shall be subject to these terms and conditions.

7.3 The risk in returned Products shall continue to be borne by the Customer until the Vendor has accepted the return and the returned Products in writing, to which acceptance the Vendor may attach conditions.

7.4 As an essential part of any Agreement and a basic principle of these Terms and Conditions, the Customer acknowledges and expressly accepts to be obliged to check the conformity of the Products during their delivery, pointing out any visible non-conformity - including but not limited to quantity, quality, documentation and labeling on the delivery note which shall be signed by the carrier. In the absence of such (signed) notice, the Products shall be deemed definitively accepted free of such non-conformity and the Customer cannot claim any subsequent non-conformity of the delivered Products, that should have been discovered with due care during delivery.

7.5 Moreover, the Customer has a further essential and material contractual duty to immediately (i.e. without undue delay) and in any event prior to any use and/or reselling test and effectively evaluate, among others, whether:

(i) the Products meet the specifications, as provided by the Vendor,

(ii) the Products and/or any related technical support and information, as provided by the Vendor, are suitable for Customer’s intended uses and applications.

7.6 The Customer’s obligation to inspect, test and evaluate the delivered Products as described herein shall, among others, consist out of an application-specific analysis and shall, at least, include testing to determine suitability from a technical as well as health, safety, and environmental standpoint. The Customer in breach of these obligations cannot claim any consequent non-conformity and/or defects of the delivered Products.

7.7 Submitting complaints shall not release the Customer from its payment obligations.

7.8 If complaints are submitted in time and in accordance with these Terms and Conditions, and the Vendor is reasonably of the opinion that the complaint is justified, the Vendor shall be free to choose either to deliver what is lacking, or to redeliver the Products found to be unsound free of charge, or to grant a discount on the price. By performing in one of the above stated ways, the Vendor shall have discharged its warranty obligation under these Terms and Conditions fully and shall not be obliged to pay any further compensation. Returned Products shall become the property of the Vendor.

7.9 The Vendor may at its discretion refuse the Products for return for any reason other than the conditions contained herein. Without limiting the provisions of any other condition within these Terms and Conditions, the Vendor’s liability with respect to claims shall not exceed the purchase price of the Products.

7.10 The Vendor may at its discretion replace the Products which are the subject of a claim, at no extra cost to the Customer, and the replacement Products shall be subject to these Terms and Conditions.

8.1 The Customer acknowledges that these Terms and Conditions constitute a Security Agreement under the Personal Property Securities Act 2009 (PPSA) and that it will grant the Vendor a security interest (preferably, a Purchase Money Security Interest) in all present and after acquired Products and Services supplied by the Vendor and their proceeds to secure all moneys owing to the Vendor now and in the future in respect of the supply of the Products and Services.

8.2 The Customer undertakes to provide any information that the Vendor may reasonably require to enable the Vendor to perfect and maintain the perfection of the Vendor’s security interest (including by registration of a financing statement) and in accordance with PPSA.

8.3 The Customer undertakes to immediately notify the Vendor in writing of any changes in the Customer name and/or any other change in the Customer details (including, but not limited to, changes in the Customer’s address, contact number, trading name or business practice). The Customer will not have the right to transfer any Products provided by the Vendor to any potential Customer or Customer of the Customer’s business, unless the Products are first paid for in full to the Vendor.

8.4 In placing an order with the Vendor, the Customer expressly represents that the Customer:

a) is solvent; and

b) has not committed an act of bankruptcy; and

c) knows of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver, or which would entitle any creditor or shareholder to apply to the Court to liquidate the Company or exercise any other rights over or against the Customer’s assets.

8.5 The terms defined in the PPSA have the same meaning in these Terms and Conditions (unless otherwise defined within).

8.6 The Customer agrees that these Terms and Conditions continue a security agreement for the purposes of the PPSA.

8.7 The title or property in any Products delivered by the Vendor to the Customer shall pass to the Customer only upon payment in full by the Customer to the Vendor in relation to all Products that have been delivered to the Customer pursuant to these Terms and Conditions as well as any other sums of money that may be due and payable pursuant to these Terms and Conditions. The Vendor holds a Security Interest in all Products supplied to the Customer for payment of those moneys.

8.8 Until all moneys due to the Vendor are paid in full by the Customer, the Customer agrees to act as a fiduciary of the Vendor and that the Customer will:

a) not sell, charge or part with possession of the Products, otherwise than for their full values in the ordinary course of business;

b) not alter, obliterate, or deface the Products and will not alter, obliterate, deface, cover up, or remove any identity mark indicating that the Products are the Vendor’s property;

c) store the Products in such manner that they are clearly identifiable as the Vendor’s property and must keep separate records of the Products; and

d) hold the proceeds of the resale of the Products in trust for the Vendor, in a separate and identifiable manner.

8.9 At the Vendor’s request, the Customer will promptly deliver, execute or do (or cause to be executed, delivered or done) any documents, contracts, agreements, deeds or other action that the Vendor may require from time to time to give effect to these Terms and Conditions, including without limitation doing all such things as the Vendor may require to ensure that the Security Interest created under these Terms and Conditions constitutes a perfected Security Interest over the Products. This includes, but is not limited to, providing any information the Vendor requests to complete a financing statement or a financing change statement for the Personal Property Securities register (PPSR).

8.10 The Customer waives any right to receive notice of the registration on the PPSR.

8.11 The Customer waives any right to receive a verification statement under the PPSA.

8.12 Nothing in sections 96, 115, 118, 121, 125,

129, 130, 135, 137, 142, 143 and 157 of the

PPSA shall apply to these Terms and Conditions. The Customer’s rights as a debtor in sections 92, 95, 97, 132 and 134 of the PPSA shall not apply to these Terms and Conditions.

8.13 The Customer’s right to sell the Products will terminate forthwith on written notice of such termination being delivered by the Vendor to the Customer’s place of business.

8.14 The Customer’s right to possession of the Products shall cease if:

a) the Customer commits an available act of bankruptcy; or

b) the Customer does anything or fails to do anything in circumstances where such act or omission operates to entitle a receiver or liquidator to take possession of any assets, or which would entitle any person to apply to the Court to liquidate the Customer; or

c) the Customer is overdue in making payment of any sum due to the Vendor and the Vendor makes demand. Demand may be made upon the Customer or any employee or authorised agent of the Customer by the Vendor or any employee or authorised agent of the Vendor either in writing at any time prior to repossession or verbally or in writing at the time of repossession; or

d) notice is given terminating the Customer’s right to sell Products; or

e) this agreement is terminated.

8.15 For the purpose of recovery of the Products, the Vendor may by the Vendor’s employee(s) or agent(s) enter upon any premises where the Products are stored or where they are reasonably thought to be stored and may repossess the same. This permission is irrevocable and the Customer agrees that the employees, servants or agents of the Vendor so entering are not trespassing. The Customer irrevocably agrees the Customer will not seek to invoke the provisions of any Acts to warn such persons to leave the Customer’s premises, nor will the Customer procure any other person to take such action.

8.16 Any Products held by the Customer which meet the description of the Products on an invoice in respect of which either payment has not been made in full or in respect of which title to the Products has not transferred from the Vendor hereunder shall, in the absence of separate storage of the Products terms and conditions and in the absence of evidence to the contrary, be deemed to be the Products to which the Vendor has retained title so that the Vendor shall be entitled to exercise any of the Vendor’s remedies hereunder against such Products.

8.17 If the Customer has not received the proceeds of sale of the Products subject to these Terms and Conditions, then the Customer will, within seven (7) days of being called upon to do so by the Vendor, assign to the Vendor all rights which the Customer may have against the person or persons to whom the Customer has supplied any Products.

8.18 Following repossession of the Products the Vendor shall sell the Products in whatever manner the Vendor deems appropriate whether wholesale or retail and shall credit the account of the Customer with the net proceeds of sale. The net proceeds of sale shall be the actual price received for the Products less all costs of sale including if incurred, rental of premises, staff wages, transport costs, advertising costs and all out-of-pocket expenses. The Vendor shall be obliged to list all Products repossessed but shall not be obliged to record or account for the sale of the Products on an item-by-item basis. Proceeds of sale may be accounted for globally.

8.19 The debt owing by the Customer to the Vendor at the date of repossession of Products shall, as between the parties, be deemed to include any payment previously received by the Vendor which might be claimed to be void under any law relating to bankruptcy, liquidation or the protection of creditors – irrespective of whether such a claim shall have been made at that date.

8.20 The Customer will pay all costs, expenses and other charges incurred, expended or payable by the Vendor in relation to the filing of a financing statement or financing change statement in connection with these Terms and Conditions.

8.21 The Customer agrees that in the event of external administration of the Customer, the Customer will disclose the quantity/volume of the Vendor’s Products which are in manufactured/commingled/mixed Products or otherwise which may be a work in progress as at the date of appointment of the external administrator. Any risk in the Products will pass at the time of delivery and the Customer must insure the Products accordingly.

If a claim, disagreement or dispute ("Dispute") arises between the parties, a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following (except to seek urgent interlocutory relief):

(a) a party claiming that a Dispute has arisen must give written notice to the other party specifying the nature of the Dispute;

(b) on receipt of that notice by that other party, the parties must endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, independent expert evaluation or determination or similar techniques agreed by them;

(c) if the parties do not agree within 7 days of receipt of the notice (or any other period agreed in writing by them) concerning:

(i) the dispute resolution technique and procedures to be adopted;

(ii) the timetable for all steps in those procedures; and

(iii) the selection and compensation of the neutral person required for the technique.

This Agreement may not be assigned, in whole or part, by Customer without the prior written consent of the Vendor. The Vendor may assign its rights and delegate its obligations under this Agreement to the Vendor parent, subsidiary or affiliate.

This Agreement is binding upon and inures to the benefit of each party’s respective successors or permitted assigns. Any entity acquired by the Customer which is under an existing contract with the Vendor will automatically be subject to these Terms and Conditions, unless otherwise agreed by the Vendor in writing.

11.1 Independent contractors. The parties are independent contractors, and these Terms and Conditions are not intended to create any partnership, trust or agency relationship.

11.2 Severability. If any provision of these Terms and Conditions is held by a court to be unlawful, invalid or unenforceable in any jurisdiction, it is to be read down and severed in that jurisdiction to the extent that it is unlawful, invalid or unenforceable, and the validity and enforceability of the remaining provisions shall not be thereby affected.

11.3 Waiver. If at any time the Vendor does not enforce any of these Terms and Conditions or grants the Customer time or other indulgence, the Vendor shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.

11.4 Governing law and jurisdiction. These Terms and Conditions must be read and construed according to the laws of the State of Western Australia and the parties submit to the non-exclusive jurisdiction of the courts of that State.