Adelaide Urban ElectricalPty LtdService Agreement

 

  1. Definitions

1.1       “AUE” means Adelaide Urban Electrical Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of AUE.

1.2       “Client” means the person/s buying the Serviceor Services as specified in any invoice, document or order, and if there is more than one, Client is a reference to each Client jointly and severally.

1.3       “Service” means all Goods, Services, Materials and Works supplied by AUE to the Client at the Client’s request from time to time (where the context so permits the terms Goods, Services, Materials and Works shall be interchangeable witheach other).

1.4       “Price” means the Price payable for the Service as agreed between AUEand the Client in accordance with clause 5 herein.

  • Words importing the singular shall include the plural and vice versa.
  • Words importing any gender include all gender.
  • Any reference to any person includes that person’s executors, administrators, agents, assigns or, being a company, its successors or permitted assigns.
  • Words describing individuals include companies and bodies corporate and vice versa.

 

  1. Acceptance

2.1       The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for the Service.

2.2       Where the Client is a tenant (and therefore not the owner of the land and premises where Services are to be undertaken or Goods installed) then the Client warrants that full consent has been obtained from the owner of the land for AUE to enter, work on and install Goods on the land and premises. The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for all works provided under this agreement and to indemnify AUE against any claim made by the owner of the premises (howsoever arising) in relation to the installation of Goods or undertaking of any services and the provision of any related Services by AUE except where such claim has arisen due to the negligence of AUE.

2.3       The Client agrees that, upon request, they will provide proof of ownership of the land for proposed works or that they are a tenant with the express consent of the owner of such land.

2.4       These terms and conditions may only be amended with AUE’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and AUE.

2.5       In the event that:

(a) the Clientrequests a variation (requiring written details from the Client);

(b) an unforeseeable problem occurs or is discovered, requiring a variation; or

(c) a variation is made;

AUE will give the Client a written variation document detailing the Service, the Price, the estimated time to undertake the variation, and the likely delay, if any and require written acceptance of the variation before commencing work on the variation.

2.6       The Client agrees to supply power, temporary lighting, toilet and first aid facilities to AUE, as required.

 

  1. Underground Services

3.1       In relation to any underground services (in that the surface of the ground is to be broken) AUE may be required to first engage a third-party to ensure the safety of such activity. AUE reserves the right to engage a third-party provider ‘service locator’ and on-charge the client for that service. Such an event will constitute a variation as detailed in clause 2.5above. The Client will be consulted before any such engagement is made.

3.2       The Client agrees to indemnify AUE in respect of any and all claims, loss, damages, costs and fines incurred as a result of damage to services not precisely located and notified.

3.3       Prior to Services commencing, the Client must advise AUE of the precise location of any underground services and clearly mark the same. These services include, but are not limited to, electrical, gas, sewer and pumping services, sewerconnections, sludge mains and water mains, irrigation pipes, telephone cables, fibre optic cables, oil pump mains and any other services that may be on that location.

3.4       Whilst AUE will take all reasonable care to avoid damage to any underground services, the Client accepts and agrees to indemnifyAUE in respect of any and all claims, loss, damage, costs and fines incurred as a result of damage to services not precisely located and notified, as per the clauses herein.

 

  1. Change in Control

4.1       Where the Client is a business or company, the Client shall give AUEnot less than seven (7) days’ prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone numbers, email addresses or business practice). The Client shall be liable for any loss incurred by AUE as a result of the Client’s failure to comply with this clause.

 

  1. Price and Payment

5.1       At AUE’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by AUE to the Client; or

(b) AUE’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. Unless specified otherwise, the Price does not include the supply of all materials etc.

  • AUEreserves the right to change the Price if a variation to AUE’squotation is requested. Any variation from the plan of scheduled Services or specifications of the Service (including, but not limited to, any increases to AUE in the cost of taxes, levies, materials and labour or where additional Services are required due to the discovery of hidden or unidentifiable difficulties including, but not limited to, obscured building defects, safety considerations, change in specifications or prerequisite work by any third party not being completed, etc. which are only discovered on commencement of the Services) will be charged for on the basis of AUE’ quotation and will be shown as variations on the invoice.
  • If Goods cannot be returned, AUE reserves the right to claim the full costs of the Goods from the Client. If Goods can be returned, AUE reserves the right to on-charge any restocking fee applied to such returns, and additionally any reasonable costs of time and travel incurred to undertake such returns.

5.4       Time for payment for the Service being of the essence, the Price will be payable by the Client on the date/s determined by AUE, which may be:

(a) in full upon the completion of the Service, or on Delivery of the Goods (whichever is later);

(b) 30 days from the date of any invoice provided;

(c) by way of instalments/progress payments as agreed in writing between the Parties of this agreement. Payments by weekly instalments may be required where any job requires 2 or more attendances by AUE.

(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by AUE.

5.5       Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price) or by any other method as agreed to between the Client and AUE.

5.6       Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to AUE an amount equal to any GST AUE must pay for any supply by AUE under this or any other agreement for the sale of the Service. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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.

5.7       AUE and the Client agree that the terms of this Agreement will not be finalised until:

(a) the Client has paid AUE all amounts owing to AUE; and

(b) the Client has met all of its other obligations to AUE.

5.8       Receipt by AUE 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 AUE’ rights and ownership in relation to the Service, and this agreement, shall continue.

5.9       Where the Client has engaged AUE’s emergency 24/7 call-out service, the following Price schedule will apply. For services requested between:

(a)        6:00pm and 8:00pm – Call-out fee of $110 (including GST) for 30 minutes. After that time, $55 (including GST) per 30 minutes on-site;

(b)        8:00pm and 10:00pm – Call-out fee of $165 (including GST) for 30 minutes. After that time, $75 (including GST) per 30 minutes on-site;

(c)        10:00pm and 12:00am – Call-out fee of $260 (including GST) for 30 minutes. After that time, $135 (including GST) per 30 minutes on-site;

(d)        12:00am and 7:30am – Call-out fee of $350 (including GST) for 30 minutes. After that time, $175 (including GST) per 30 minutes on-site.

The above times and Prices relate to services within 20 kilometres of AUE’s primary place of business. For Services more than 20 kilometres from AUE, Prices are to be agreed between the Parties. AUE reserves the right to amend its Price based on travel requirements.

 

  1. Undertaking service

6.1       Service is taken to have occurred at the time that:

(a) AUE (or AUE nominated carrier) undertakes the Serviceat the Client’s nominated address, even if the Client is not present at the address; or

(b) Any other method of service occurring, as agreed in writing by the parties to this agreement.

6.2       At AUE’sole discretion, the cost of Service is included in the Price.         

6.3       The time, date and location for Service is to be agreed between the parties. In the event that the Client is unable to receive Service as arranged then AUE shall be entitled to charge a reasonable fee for reattendance and/or storage of Goods.

6.4       AUE may undertake the Service in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.5       Any time or date given by AUE to the Client is subject to change. AUE will not be liable for any loss or damage incurred by the Client as a result of Service being late.

 

  1. Risk

7.1       Risk of damage to or loss of property passes to the Client on completion of Service and the Client must insure their property, and any goods, prior to the Service.

7.2       If any Goods are damaged or destroyed following Service but prior to ownership passing to the Client, AUE is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by AUE is sufficient evidence of AUE’s rights to receive the insurance proceeds without the need for any person dealing with AUE to make further enquiries.

7.3       If the Client requests AUEto leave Goods outside their own premises, or outside AUE’premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

7.4       The Client acknowledges that in the event any toxic substances (including, but not limited to, poisons, or any other contaminants) are discovered at the place of work that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify AUE against any costs incurred by AUE as a consequence of such discovery and/or removal. If the Client requests AUE to remove such materials, AUE reserves the right to charge for such Service. Under no circumstances will AUEhandle removal of asbestos products.

7.5       The Client shall ensure that AUEhas clear and free access to the place of work at all times to enable them to undertake the Services.AUEshall not be liable for any loss or damage to the site unless due to the negligence of AUE.

7.6       Where AUE is required to install a Good, the Client warrants that the structure of the area in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and AUE shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the area be unable to accommodate the installation.

7.7       The Client acknowledges that the Goods supplied may fade, change or lose colour, expand, contract or distort due to weather and age, mark or stain or be damaged or disfigured by impact. Whilst AUE will make every effort to match samples supplied in order to minimise such variations, AUE shall not be liable in any way for such variations.

7.8       Where the Client has supplied Goods for AUE to complete the Services, the Client acknowledges and accepts responsibility and liability for the suitability of purpose, quality and any faults inherent in those Goods. AUE shall not be liable for any defects in Goods, any loss or damage to property (or any part thereof), howsoever arising from the use of Goods supplied by the Client. Goods supplied by the Client must be available onsite prior to the commencement of Services.

7.9       Any advice, recommendation, information, assistance or service provided by AUE in relation to Goods or Services supplied is given in good faith, is based on AUE’s own knowledge and experience and shall be accepted without liability on the part of AUEand it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Service.

7.10     Where AUE gives advice or recommendations to the Client, or their agent, regarding the suitability of Goods, and such advice or recommendations are not acted upon by the Client, AUE shall not be liable in any way whatsoever for any damages or losses that occur and any warranties, resupply or defects clauses will be revoked.

7.11     Subject to clause 7.10, the Client accepts and acknowledges that Goods supplied and installed by AUE require reasonable maintenance. AUE reserves the right to not accept liability for such Goods where they may have become negatively affected, or unusable, due to the Client’s failure to reasonably maintain such Goods and/or, follow instructions, guidelines, advice or recommendations provided by AUE in regard to the proper maintenance of theGoods.

7.12     The Client accepts that machinery and tools used by AUE in the undertaking of Services may generate dust, smoke or dirt. AUE recommends that furniture is covered and windows and doors are opened whilst such machinery is in use. The Client acknowledges that AUE will make all reasonable efforts to clean a work area, however the Client accepts that AUE may not remove all dirt, dust or other rubbish. AUE does not accept liability for such removal.

 

  1. Dimensions, Design, Plans and Specifications

8.1       AUE shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client.

8.2       If the giving of a quotation for the supply of Service involves AUE estimating measurements and quantities, it shall be the responsibility of AUE to verify the accuracy of AUE’s estimated measurements and quantities in the preparation of quotes and sales proposals.

8.3       AUE reserves the rights to make changes to the measurements after the agreement has been signed to comply with regulations and requirements for installation.

 

  1. Compliance with Laws

9.1       The Client and AUE 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 (WHS) laws relating to the relevant industry and any other relevant safety standards or legislation.

9.2       The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Service.

 

  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

10.1     The Client must inspect all Goods on delivery (or Services on completion) and must within seven (7) days of delivery notify AUE, in writing, of any evident defect/damage, shortage in quantity or failure to comply with the description or quote. The Client must notifyAUE of any other alleged defect in the Goods/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow AUE to inspect the relevant Goods or Services.

10.2     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”).

10.3     AUE acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

10.4     Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, AUEmakes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Service. AUE’s liability in respect of these warranties is limited to the fullest extent permitted by law.

10.5     If the Client is a consumer within the meaning of the CCA, AUE liability is limited to the extent permitted by this Act.

10.6     If AUEis required to replace Goods or redoServices under this clause or the CCA, but is unable to do so, AUE may refund any money the Client has paid for the Service.

10.7     If the Client is not a consumer within the meaning of the CCA, AUE’s liability for any defect or damage in the Service is:

(a) limited to the value of any express warranty or warranty card provided to the Client byAUEat AUE’s sole discretion; or

(b) otherwise negated absolutely.

10.8     Subject to this clause 10, returns and refunds will only be accepted provided that:

(a) the Client has complied with the provisions of clause 10; and

(b) AUE has agreed that the Services are defective; and

(c) If relating to the return of Goods, therelevant Goods are returned within a reasonable time at the Client’s cost; and

(d) If relating to the return of Goods, the relevant Goods are returned in as close a condition to that in which they were delivered as is possible.

10.9     Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, AUE 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 Client failing to properly maintain the Serviced area or store the Goods;

(b) the Client using the Serviced area or Goods for any purpose other than that for which they were designed;

(c) the Client continuing use or attempting to repair after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Client failing to follow any instructions or guidelines provided by AUE;

(e) fair wear and tear, any accident, or act of God.

10.10 Notwithstanding anything contained in this clause if AUE is required by a law to accept a return then AUE will only accept a return on the conditions imposed by that same law.

10.11  Unless otherwise stated or agreed in writing, demolished materials remain the property of the Client and materials which AUE bring to the location where Services are undertaken which are surplus, remain the property of AUE, unless such materials or Goods have been paid for by the Client.

 

  1. Intellectual Property

11.1     Where AUE has designed, drawn, written plans or a schedule or developed a Service for the Client, or created any products for the Client, then the copyright in any designs, drawings, plans, schedules, products and documents shall remain the vested in AUE, and shall only be used by the Client at AUE’s discretion.

11.2     The Client warrants that all designs, specifications or instructions given to AUE will not cause AUEto infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify AUEagainst any action taken by a third party against AUEin respect of any such infringement.

11.3     The Client agrees that AUEmay (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Service which AUEhas created for the Client.

 

  1. Default and Consequences of Default

12.1     Where an invoice has remained unpaid for 7 days, on the 8th day, AUE reserves its right to undertake the following actions, including charging the Client the outlined costs:

(a) 1st Notice – A reminder will be sent to the Client, in writing, at no cost;

(b) 2nd Notice – A second reminder will be sent to the Client and an administration fee of $250 (inclusive of GST) will be charged to the Client;

(c) 3rd Notice – A third and final reminder will be sent to the Client and an administration fee of $350 (inclusive of GST) will be charged to the Client;

(d) If the invoice remains unpaid after the deadline provided for in the 3rd notice, solicitor’s or collection agents will be engaged and the Client agrees to indemnify AUE for any reasonable collection costs (in accordance with clause 12.3 and clause 16 herein).

12.2     Interest on overdue invoices shall accrue daily from the date that payment was due, until the date of payment, at a rate of four percent (4%) per annum pro rata, after as well as before any judgment.

12.3     If the Client owes AUE any money the Client shall indemnify AUE from and against all costs and disbursements incurred by AUEin recovering the debt (including but not limited to collection fees, legal costs on a solicitor and own client basis,AUE’scontract default fee, Court or any other institution filing fees and bank dishonour fees).

12.4     Without prejudice to any other remedies AUE may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions AUE may suspend or terminate the supply of Service to the Client. AUE will not be liable to the Client for any loss or damage the Client suffers because AUE has exercised its rights under this clause.

12.5     Without prejudice to AUE other remedies at law AUEshall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to AUEshall, whether or not due for payment, become immediately payable if:

(a) any money payable to AUE becomes overdue, or in AUE’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client becomes insolvent, 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 Client or any asset of the Client.

 

13       Title

  • AUE and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid AUE all amounts owing to AUE; and

(b) the Client has met all of its other obligations to AUE.

13.2     It is further agreed that until ownership of the Goods passes to the Client:

(a) the Client is only a bailee of the Goods and unless the Goods have become fixtures must, return the Goods to AUE on request.

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for AUE and must pay to AUE the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c) the production of these terms and conditions by AUE shall be sufficient evidence of AUE’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with AUE to make further enquiries.

(d) the Client must not sell, dispose of, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for AUE and must pay or deliver the proceeds to AUE on demand.

(e) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of AUE and must sell, dispose of or return the resulting product to AUE as it so directs.

(f) unless the Goods have become fixtures the Client irrevocably authorises AUE to enter any premises where AUE believes the Goods are kept and recover possession of the Goods.

(g) AUE may recover possession of any Goods in transit whether or not delivery has occurred.

(h) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of AUE.

(i) AUE may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

  1. Guarantee

14.1     As security for the due and punctual payment and performance of the Client’s obligations under this Agreement, the Client may be required to (at AUE’s discretion), prior to the undertaking of Services by AUE, provide to AUE a Guarantor to enter into this Agreement and guarantee and indemnify AUE on any or all of the following terms:

(a)           The Guarantor unconditionally guarantees full Payment of all money owed by the Client under this Agreement and any auxiliary documents and the observance and performance of all of the Client’s obligations as specified in or implied by this Agreement;

(b)           The Guarantor indemnifies and must keep indemnified AUE against any costs, expenses, claims, liabilities, losses and damaged incurred by AUE in respect of any default by the Client under this Agreement, or arising out of any claim by any third-party relating to the terms of this Agreement;

(c)           This guarantee covers all Services undertaken by AUE, including Variations;

(d)           This guarantee is in favour of AUE and its employees, successors, assigns and agents;

(e)           This guarantee extends to claims by AUE for breaches of material terms of this Agreement and repudiation of this Agreement and to AUE’s reasonable legal and other expenses of seeking to enforce those obligations (subject to clause 16 herein);

(f)            AUE may require the Guarantor under this guarantee to pay to AUE any outstanding amounts, or any other amount to compensate AUE for any loss or damage incurred under this Agreement, without AUE being required to institute any proceedings against the Client in respect of such claims or breaches;

(g)           AUE’s rights against the Guarantor are not affected by:

(i)            the death, bankruptcy or winding up of the Client or Guarantor;

(ii)           the Client’s liability under this Agreement, any variation or any other auxiliary documents, assignments or extensions of the Agreement between the Parties;

(iii)          any release of the Client or any Guarantor;

(h)           This Guarantee is to be a continuing Guarantee and will be irrevocable and will remain in full force and effect until the whole of the moneypayable or which may become payable pursuant to the provisions of this Agreement has been paid and until all obligations of the Client, pursuant to this Agreement, have been duly and properly observed and performed or satisfied.

               

  1. Security and Charge

15.1     In consideration of AUE agreeing to supply the Goods, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

15.2     The Client indemnifies AUE from and against all AUE’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising AUE’ rights under this clause.

15.3     The Client irrevocably appoints AUE and each director of AUE as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.

 

  1. Legal Fees and Collection Costs.

To the extent not prohibited by applicable law, the Client shall pay to AUEon demand any and all expenses, including, but not limited to, collection costs, all attorneys’ fees and expenses, and all other expenses which may be expended by AUEto obtain or enforce payment of Obligations either as against the Client or any guarantor or surety of the Client or in the prosecution or defense of any action or concerning any matter growing out of or connected with this Agreement, the Collateral, or any of AUE’s rights therein or thereto, including, without limiting the generality of the foregoing, any counsel fees or expenses incurred in any bankruptcy or insolvency proceedings and all costs and expenses (including search fees) incurred or paid by AUEin connection with the administration, supervision, protection or realization on any security held by AUEfor the debt secured hereby, whether such security was granted by the Client or by any other person primarily or secondarily liable (with or without recourse) with respect to such debt; and all costs and expenses incurred AUEin connection with the defense, settlement or satisfaction of any action, claim or demand asserted against AUEin connection therewith, which amounts shall be considered advances to protect AUE security, and shall be secured hereby. All such costs and expenses shall be deemed Additional Expenses.

  1. Cancellation

17.1     AUE may cancel any contract to which these terms and conditions apply or cancel Service at any time before the Service isprovided or delivered by giving notice to the Client. On giving such notice AUE shall invoice the Client for any work completed up to that point and any materials purchased.The Client will have the option to purchase those materials from AUE at cost value plus any fees charged by AUE for delivery of those materials to an address nominated by the Client. AUEshall not be liable for any loss or damage whatsoever arising from such cancellation.

17.2     The Client may cancel any contract to which these terms and conditions apply. For Services in excess of $3,000, the following cancellation fees apply:

(a)        Within 7 days – 20% of the total cost of the Service;

(b)        Within 48 hours – 30% of the total cost of the Service;

(c)        Within 24 Hours – 50% of the total cost of the Service;

(d)        On the day – Full cost of the service, and any additional, reasonable fees for time and travel incurred by AUE. The above percentages include an administration fee for cancellation.

For Services less than $3,000, the Client may cancel any contract to which these terms and conditions apply by giving notice to AUE. If less than 24 hours’ notice is given, AUE reserves the right to charge an administration fee, and any reasonable costs for time and travel incurred by AUE.

17.3     AUE reserves the right not to refund any deposit where the Client has cancelled or terminated a contract.

17.4     In the event that the Client cancels or terminates this agreement,AUE reserves the right to charge an administrative fee of up to $250 to the Client.

17.5     Cancellation or termination shall only be accepted by AUE if provided in writing. The Client shall be liable for any and all loss incurred (whether direct or indirect) by AUE as adirect result of the cancellation (including, but not limited to, any loss of profits).

17.6     Cancellation of orders for Service made to the Client’s specifications, or for non-stock list items, will not be accepted once productionhas commenced, or an order has been placed and any deposit will be forfeited at the sole discretion of AUE.

 

  1. General

18.1     The failure by AUE to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect AUE’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.

18.2     These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia, the state in which AUE has its principal place of business and are subject to the jurisdiction of the courts in that state.

18.3     Except as otherwise provided for in these terms and conditions,AUEshall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach AUEof these terms and conditions (alternatively AUE liability shall be limited to damages which under no circumstances shall exceed the Price).

18.4     The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by AUE nor to withhold payment of any invoice because part of that invoice is in dispute.

18.5     AUE may license or sub-contract all or any part of its rights and obligations without the Client’s consent.AUE will endeavor to notify the Client of such license or sub-contracting;however, it is not obliged to do so.

18.6     AUE will not be liable for any loss or damage to any person or property caused by a third party who has been licensed or sub-contracted by them.

18.7     AUE makes no assertion to, nor will they be liable for any claims regarding the quality of work provided by any licensed or sub-contracted party.

18.8     The Client agrees that AUE may amend these terms and conditions at any time. If AUE makes a change to these terms and conditions, then that change will take effect from the date on which AUE notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for AUE to provide Service to the Client.

18.9     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.

18.10  The Client 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.