Terms of Trade
Powers Insulation & Plumbing Terms of Trade
1. Definitions
1.1 “PIP” means J A Power Pty Ltd T/A Powers Insulation & Plumbing, its successors and assigns or any person acting on behalf of and with the authority of J A Power Pty Ltd T/A Powers Insulation & Plumbing.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by PIP to the Customer.
1.3 “Products” means all Products or Services supplied by PIP to the Customer, at the Customer’s request, from time to time (where the context so permits the terms ‘Products’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Products as agreed between PIP and the Customer in accordance with clause 5 below.
1.5 “Site” means the address nominated by the Customer to which the Products are to be supplied by PIP.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for Products, or accepts Delivery.
2.2 These terms and conditions may only be amended with PIP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and PIP.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.4 These terms and conditions may be meant to be read in conjunction with PIP’s Hire Form, and:
(a) where the context so permits, the terms ‘Products’ or ‘Services’ shall include any supply of Equipment, as defined therein; and
(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
3. Change in Control
3.1 The Customer shall give PIP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by PIP as a result of the Customer’s failure to comply with this clause.
4. Specifications
4.1 The Customer acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in PIP’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only.
The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by PIP.
4.2 The Customer shall be responsible for ensuring that the Products ordered are suitable for their intended use, as in some instances the Products are made to order and PIP offers no refund, either partial or fully, in the event of any cancellation by the Customer.
4.3 The Customer acknowledges and accepts that the supply of Products for accepted orders may be subject to availability and if, for any reason, Products are not or cease to be available, PIP reserves the right to substitute comparable Products (or components of the Products) and vary the Price as per clause 5.2. In all such cases PIP will notify the Customer in advance of any such substitution, and also reserves the right to place the Customer’s order on hold until such time as PIP and the Customer agree to such changes.
5. Price and Payment
5.1 At PIP’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by PIP to the Customer in respect of Products supplied; or
(b) PIP’s quoted Price (subject to clause 5.2) which shall be binding upon PIP provided that the Customer shall accept PIP’s quotation in writing within thirty (30) days.
5.2 PIP reserves the right to change the Price:
(a) if a variation to the Products which are to be supplied (including any applicable designs, plans and/or specifications) is requested; or
(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the Site, obscured Site defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos), prerequisite work by any third party not being completed or meetings legislative requirements, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and cabling, etc.) which are only discovered on commencement of the Services; or
(c) in the event of increases to PIP in the cost of labour or materials, including additional transportation, packing, freight, storage, handling, insurance, or government, statutory or regulatory charges that relate to the supply of the Products (if any), or fluctuations in currency exchange rates, which are beyond PIP’s control.
5.3 At PIP’s sole discretion, a deposit may be required prior to Delivery.
5.4 Time for payment for the Products being of the essence, the Price will be payable by the Customer on the date/s determined by PIP, which may be:
(a) on Delivery;
(b) by way of instalments/progress payments in accordance with PIP’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Products delivered to the Site but not yet installed;
or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by PIP.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card – excluding Amex and Diners (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Customer and PIP.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to PIP an amount equal to any GST PIP must pay for any supply of Products by PIP under this or any other agreement. 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 pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery and Installation
6.1 Delivery of the Products (“Delivery”) is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Products at PIP’s address; or
(b) PIP (or PIP’s nominated carrier) delivers the Products to the Site, even if the Customer is not present.
6.2 At PIP’s sole discretion, the costs of Delivery are either included in, or in addition to, the Price.
6.3 PIP may deliver the Products in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 Any time specified by PIP for Delivery is an estimate only and PIP will not be liable for any loss or damage incurred by the Customer as a result of any delay. However both parties agree that they shall make every endeavour to enable the Products to be supplied at the time and place as was arranged between both parties. In the event that PIP is unable to supply the Products as agreed solely due to any action or inaction of the Customer, then PIP shall be entitled to charge a reasonable fee for re-supplying the Products at a later time and date.
7. Risk
7.1 If PIP retains ownership of the Products nonetheless, all risk for the Products passes to the Customer on Delivery.
7.2 If any of the Products are damaged or destroyed following Delivery but prior to ownership passing to the Customer, PIP is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by PIP is sufficient evidence of PIP’s rights to receive the insurance proceeds without the need for any person dealing with PIP to make further enquiries.
7.3 If the Customer requests PIP to leave Products outside PIP’s premises for collection or to deliver the Products to an unattended location then such Products shall be left at the Customer’s sole risk.
7.4 In the event that PIP discovers asbestos/hazardous materials on Site, PIP shall immediately advise the Customer of the same and shall be entitled to suspend the Services pending a risk assessment in relation to those materials. The Customer shall be liable for all additional costs incurred by PIP (howsoever arising) as a result of the discovery of asbestos/hazardous materials and/or any suspension of the Services in relation thereto. Where PIP agrees to remove any asbestos/hazardous materials on the Customer’s behalf then the Customer shall be liable for all costs incurred by PIP in the removal and disposal those materials.
7.5 The Customer agrees to indemnify PIP from any damage caused by any other tradesmen during and after the completion of the Services. If the Customer instructs PIP to rectify any damage caused by any other tradesmen, this will be considered a variation to the Price as per clause 5.2 and will be charged at PIP’s normal hourly rate.
7.6 The Customer acknowledges that:
(a) PIP is only responsible for components that are replaced by PIP and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure;
(b) where the Customer has supplied goods for PIP to complete the Services, the Customer acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in those goods; and
(c) PIP shall not be liable for any loss or damage to the Services (or any part thereof) howsoever arising where sub-clauses (a) and (b) applies.
7.7 The Customer warrants that any structures to which the Products are to be affixed are able to withstand the installation thereof and that any plumbing and/or electrical connections (including, but not limited to, pipes, couplings and valves, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Products once installed. If for any reason (including the discovery of asbestos, defective or unsafe plumbing and/or wiring, or dangerous access to crawl spaces or the roof) that PIP, or PIP’s employees, reasonably form the opinion that the Customer’s premises is not safe for the installation of the Products to proceed then PIP shall be entitled to delay the installation thereof until PIP is satisfied that it is safe to proceed.
8. Access
8.1 The Customer shall ensure that PIP has clear and free access to the Site at all times to enable them to supply the Products. PIP shall not be liable for any loss or damage to the Site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of PIP.
9. Compliance with Laws
9.1 The Customer and PIP shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable, including any work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
9.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required.
10. Underground Locations
10.1 Prior to Delivery the Customer must advise PIP of the precise location of all underground services on the Site and clearly mark the same. The underground mains and services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Site.
10.2 Whilst PIP will take all care to avoid damage to any underground services the Customer agrees to indemnify PIP in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1.
11. Title
11.1 PIP and the Customer agree that the Customer’s obligations to PIP under this agreement shall not cease (and ownership of the Products shall not pass) until:
(a) the Customer has paid PIP all amounts owing to PIP; and
(b) the Customer has met all other obligations due by the Customer to PIP in respect of all contracts between PIP and the Customer.
11.2 Receipt by PIP of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then PIP’s ownership or rights in respect of the Products, and this agreement, shall continue.
11.3 It is further agreed that, until ownership of the Products passes to the Customer in accordance with clause 11.1:
(a) the Customer is only a bailee of the Products and must return the Products to PIP on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Products on trust for PIP and must pay to PIP the proceeds of any insurance in the event of the Products being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Products then the Customer must hold the proceeds of any such act on trust for PIP and must pay or deliver the proceeds to PIP on demand.
(d) the Customer should not convert or process the Products or intermix them with other Products but if the Customer does so then the Customer holds the resulting product on trust for the benefit of PIP and must sell, dispose of or return the resulting product to PIP as it so directs.
(e) the Customer irrevocably authorises PIP to enter any premises where PIP believes the Products are kept and recover possession of the Products.
(f) PIP may recover possession of any Products in transit whether or not Delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of PIP.
(h) PIP may commence proceedings to recover the Price notwithstanding that ownership of the Products has not passed to the Customer.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Products and collateral (accounts) – being a monetary obligation of the Customer to PIP for Services – that have previously been supplied, and that will be supplied in the future, by PIP to the Customer.
12.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which PIP may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, PIP for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of PIP;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products in favour of a third party without the prior written consent of PIP.
12.4 PIP and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by PIP, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer shall unconditionally ratify any actions taken by PIP under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of PIP agreeing to supply Products, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Customer indemnifies PIP from and against all PIP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PIP’s rights under this clause.
13.3 The Customer irrevocably appoints PIP and each director of PIP as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Customer must inspect the Products on Delivery and must within seven (7) days of such time notify PIP in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or estimate. The Customer must notify any other alleged defect in the Products as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow PIP to inspect the Products supplied.
14.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
14.3 PIP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, PIP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Products. PIP’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, PIP’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If PIP is required to replace the Products under this clause or the CCA, but is unable to do so, PIP may refund any money the Customer has paid for the Products.
14.7 If the Customer is not a consumer within the meaning of the CCA, PIP’s liability for any defect or damage in the Products is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by PIP at PIP’s sole discretion;
(b) limited to any warranty to which PIP is entitled, if PIP did not manufacture the Products;
(c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 14.1; and
(b) PIP has agreed that the Products are defective; and
(c) the Products are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Products are returned in as close a condition to that in which they were delivered as is possible.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, PIP shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Products;
(b) the Customer using the Products for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Products after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by PIP;
(e) fair wear and tear, any accident, or act of God.
14.10 In the case of second-hand Products, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the Products prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by PIP as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that PIP has agreed to supply the Customer with the Products and calculated the Price thereof its reliance of this clause 14.10.
14.11 PIP may in its absolute discretion accept non-defective Products for return in which case PIP may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Products plus any freight costs.
14.12 Notwithstanding anything contained in this clause if PIP is required by a law to accept a return then PIP will only accept a return on the conditions imposed by that law.
Terms of Trade
15. Intellectual Property
15.1 Where PIP has designed, drawn or developed Products for the Customer, then the copyright in any designs and drawings and documents shall remain the property of PIP.
15.2 The Customer warrants that all designs, specifications or instructions given to PIP will not cause PIP to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify PIP against any action taken by a third party against PIP in respect of any such infringement.
15.3 The Customer agrees that PIP may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Products which PIP has created for the Customer.
16. Default and Consequences of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at PIP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes PIP any money the Customer shall indemnify PIP from and against all costs and disbursements incurred by PIP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, PIP’s contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies PIP may have under this agreement, if the Customer has made payment to PIP by credit card, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by PIP under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
16.4 Without prejudice to any other remedies PIP may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions PIP may suspend or terminate the supply of Products to the Customer. PIP will not be liable to the Customer for any loss or damage the Customer suffers because PIP has exercised its rights under this clause.
16.5 Without prejudice to PIP’s other remedies at law PIP shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to PIP shall, whether or not due for payment, become immediately payable if:
(a) any money payable to PIP becomes overdue, or in PIP’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
17. Cancellation
17.1 PIP may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Products have been delivered by giving written notice to the Customer. On giving such notice PIP shall repay to the Customer any sums paid in respect of the Price. PIP shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Customer cancels Delivery the Customer shall be liable for any and all loss incurred (whether direct or indirect) by PIP as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.3 Cancellation of orders for Products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18. Privacy Act 1988
18.1 The Customer agrees for PIP to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by PIP.
18.2 The Customer agrees that PIP may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
18.3 The Customer consents to PIP being given a consumer credit report to collect overdue payment on commercial credit.
18.4 The Customer agrees that personal credit information provided may be used and retained by PIP for the following purposes (and for other agreed purposes or required by):
(a) the supply of Products; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the supply of Products; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Products.
18.5 PIP may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
18.6 The information given to the CRB may include:
(a) personal information as outlined in 18.1 above;
(b) name of the credit provider and that PIP is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty
(60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and PIP has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of PIP, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.7 The Customer shall have the right to request (by e-mail) from PIP:
(a) a copy of the information about the Customer retained by PIP and the right to request that PIP correct any incorrect information; and
(b) that PIP does not disclose any personal information about the Customer for the purpose of direct marketing.
18.8 PIP will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
18.9 The Customer can make a privacy complaint by contacting PIP via e-mail. PIP will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event tha the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Unpaid Seller’s Rights
19.1 Where the Customer has left any item with PIP for repair, modification, exchange or for PIP to perform any other service in relation to the item and PIP has not received or been tendered the whole of any moneys owing to it by the Customer, PIP shall have, until all moneys owing to PIP are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
19.2 The lien of PIP shall continue despite the commencement of proceedings, or judgment for any moneys owing to PIP having been obtained against the Customer.
20. Building and Construction Industry Security of Payments Act 1999
20.1 At PIP’s sole discretion, if there are any disputes or claims for unpaid Products then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
20.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
21. General
21.1 The failure by PIP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect PIP’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which PIP has its principal place of business, and are subject to the jurisdiction of the courts in that state.
21.3 Subject to clause 14, PIP shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by PIP of these terms and conditions (alternatively PIP’s liability shall be limited to damages which under no circumstances shall exceed the Price).
21.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by PIP nor to withhold payment of any invoice because part of that invoice is in dispute.
21.5 PIP may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
21.6 The Customer agrees that PIP may amend these terms and conditions at any time. If PIP makes a change to these terms and conditions, then that change will take effect from the date on which PIP notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for PIP to supply Products to the Customer.
21.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
21.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.