Internal Panelling

External Cladding

Decking

Screening

Terms and Conditions

1.

Definitions

1.1 “Company” means Modinex Products Pty Ltd (as trustee for Modinex Family Trust) T/A Urbanline Architectural, its successors and assigns or any person acting on behalf of and with the authority of Modinex Products Pty Ltd (as trustee for Modinex Family Trust) T/A Urbanline Architectural.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Company to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between the Company and the Customer in accordance with clause 4 below.

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 Goods, or accepts Delivery.
2.2 These terms and conditions (and any terms and conditions stipulated by the Company in any further or other separate written agreement, including but not limited to, quotations, delivery dockets, statements, tax invoices, etc.) form the entire agreement between the Company and the Customer may only be varied, amended, alter or added to, with the Company’s consent in writing, and shall prevail to the extent of any inconsistency with the Customer’s order, or other document or agreement between the Customer and the Company. The Company will not be deemed to have waived any of its rights under this agreement unless such waiver is in writing and signed by an officer of the Company.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3.

Change in Control

3.1 The Customer shall give the Company 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 the Company as a result of the Customer’s failure to comply with this clause.

4.

Price and Payment

4.1 At the Company’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Company to the Customer; or
(b) the Company’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. The Company reserves the right to vary or withdraw (whether before or after the Company’s acceptance of the Customer’s order) any quotation furnished to the Customer in order to correct any error or omission affecting the Price quoted therein, or its calculation, or generally. The Customer shall be responsible for ensuring that the quantity, type and description of the Goods specified in any quotation corresponds with the Goods required by the Customer. The Company shall be under no obligation whatsoever to the Customer for any discrepancies not drawn to the Company’s attention prior to the acceptance by the Company of any order placed on the basis of a quotation.
4.2 The Company reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested (including due to inaccuracies in quantities or dimensions or other information supplied to the Company for quotation purposes); or
(b) as a result of an increase in the Company’s costs of labour and/or materials (including due to the unavailability of materials from suppliers), or due to fluctuations in currency exchange rates, which are outside the control of the Contractor.
4.3 At the Company’s sole discretion, a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Company, which may be:
(a) on Delivery; or
(b) thirty (30) days following the end of the month in which a statement is furnished to the Customer by the Company; 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 thirty (30) days following the date of any invoice/s furnished to the Customer by the Company.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Customer and the Company.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Company an amount equal to any GST the Company must pay for any supply by the Company under this or any other agreement for the sale of the Goods. 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.

5.

Delivery

5.1 Delivery of the Goods (“Delivery”) is taken to occur at the time that:
(a) the Customer (or the Customer’s nominated carrier) takes possession of the Goods at the Company’s premises; or
(b) the Company (or the Company’s nominated carrier) delivers the Goods to the road way adjacent to the Customer’s nominated site, even if the Customer is not present at the address. The Customer acknowledges that the Company’s records of Delivery shall be prima facie evidence of Delivery to the Customer.
5.2 At the Company’s sole discretion, the cost of Delivery is included in the Price.
5.3 The Customer must take Delivery, by receipt or collection of the Goods, whenever they are tendered for Delivery. In the event that the Customer is unable to take Delivery, as arranged, then the Company shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 The Company shall be entitled to:
(a) determine the manner of Delivery; and
(b) deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by the Company to the Customer is an estimate only. The Customer must still accept Delivery, even if late, and the Company will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late.

6.

Risk

6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery, and the Customer must insure the Goods (at their full value and ensure that the Company’s interest is noted on the policy) on, or before, Delivery. The Company may require the Customer to demonstrate compliance with this clause, including by producing a copy of the insurance policy.
6.2 If any of the Goods are damaged or destroyed following Delivery, but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
6.3 If the Customer requests the Company to leave Goods outside the Company’s premises for collection, or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.

7.

Title

7.1 Both parties agree that the Company remains the legal and beneficial owner of all Goods sold by the Company to the Customer under this agreement until:
(a) the Customer has paid the Company (in cleared funds) all amounts owing to the Company in respect of all Goods; and
(b) the Customer has met all of its other obligations to the Company.
7.2 Receipt by the Company 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 the Company’s rights and ownership in relation to the Goods, and this agreement, shall continue.
7.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 7.1:
(a) and except to the extent agreed to in writing between the parties, the Customer holds the Goods as the Company’s fiduciary bailee only, and must:
(i) return the Goods to the Company on request; and
(ii) keep the Goods physically separate from all other goods purchased by the Customer from other suppliers.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Company and must:
(i) notify the Company of all insurance claims made by it in respect of any loss or damage to, or destruction of, the Goods; and
(ii) pay to the Company the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act in a separate bank account on trust for the Company, and must pay or deliver the proceeds to the Company on demand; and
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Company and must sell, dispose of or return the resulting product to the Company as it so directs; and
(e) the Customer must notify the Company of all premises at which it holds any Goods supplied under this agreement, and irrevocably authorises and allows the Company to enter (at any reasonable time) any premises where the Goods are located (or where the Company believes the Goods are located) and:
(i) inspect the Goods, upon reasonable notice from time to time; or
(ii) recover possession of those Goods not paid for (and any other Goods to the value of the amount owing), without being liable to the Customer (or any third party) in contract, tort or otherwise, for any costs, damages, expenses or losses incurred by the Customer (or any third party) as a result of any action taken by the Company under this sub-clause; and
(f) the Company may recover possession of any Goods in transit, whether or not Delivery has occurred; and
(g) the Customer 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 the Company; and
(h) the Company may commence proceedings to recover the Price, notwithstanding that ownership of the Goods has not passed to the Customer.
7.4 The Customer must reimburse the Company all costs incurred by the Company in exercising its rights under clause 7.3

8.

Personal Property Securities Act 2009 (“PPSA”)

8.1 In this clause ‘financing statement’, ‘financing change statement’, ‘security agreement’, ‘personal property’, ‘purchase money security interest’, ‘attached’, ‘attachment’, ‘perfected’, ‘accession’, ‘commingled’ and ‘security interest’ has the meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Customer:
(a) acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest (“SI”) in all Goods that have previously been supplied and that will be supplied in the future by the Company to the Customer, and in all of the Customer’s personal property as security for payment of any other amount owed by the Customer to the Company and as security for performance by the Customer of the obligations set out in these terms and conditions;
(b) grants to the Company a purchase money security interest (“PMSI”) in all Gods supplied by the Company to the Customer from time to time as security for payment of the Price of the Goods;
(c) agrees that any Goods, or proceeds of sale of the Goods coming into existence after the date of this agreement, will come into existence subject to a PMSI and the SI granted herein, and this agreement, without the need for any further action or agreement by any party;
(d) acknowledges that the Customer has received valuable consideration from the Company and agrees that it is sufficient; and
(e) agrees that the PMSI and SI has attached to all the Goods supplied now or in the future by the Company to the Customer and that the attachment of the PMSI has in no way been deferred or postponed.
8.3 The Company reserves the right to register a financing statement in the PPSR to perfect the PMSI and/or SI created under this agreement. The Customer undertakes to:
(a) promptly, on request by the Company, execute all documents and so anything else reasonably required by the Company (including sign any further documents and/or provide any further information, which shall be complete, accurate and up-to-date in all respects) to ensure that any PMSI and/or SI created under this agreement constitutes a perfected security interest, and further that the Company can:
(i) register financing change statement in relation to the PMSI and/or SI 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 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Company 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 Goods charged thereby;
(c) not register a financing change statement in respect of a PMSI and/or SI without the prior written consent of the Company;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Company, and will immediately notify the Company if the Customer becomes aware of any third party taking steps to do so;
(e) ensure that the Goods do not become accessions or commingled with other goods, unless the Company has first perfected any PMSI and/or SI that the Company has in relation to the Goods. If the Company perfects any PMSI or SI that the Company has in relation to the Goods, the Customer must not do anything that results in the Company having less security or priority granted by the PPSA that the Company assumed at the time of perfection, subject only to the rights of a mortgagee pursuant to a registered mortgage. The Company may enforce its rights under sub-clause 7.3(e) if the Company has cause to exercise any of its rights under Chapter 4 of the PPSA;
(f) immediately advise the Company of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 The Company 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.
8.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6 The Customer waives their rights as a grantor and/or a debtor under sections 135, 142 and 143 of the PPSA.
8.7 The following provisions of the PPSA (sections 123, 126, 128, 129 and 134(1)) confer rights on the Company. The Customer agrees that in addition to those rights, the Company shall, if there is default by the Customer, the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Goods, not only under those sections, but also as additional and independent rights, under this agreement and the Customer agrees that the Company may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
8.8 Unless otherwise agreed to in writing by the Company, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.9 The Customer must unconditionally ratify any actions taken by the Company under clauses 8.3 to 8.5.
8.10 The parties agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. The Customer must do everything necessary on its part to ensure that section 275(6) of the PPSA continues to apply. The agreement in this clause is made solely for the purpose of allowing to the Company the benefit of section 275(6)(a) and the Company shall not be liable to pay damaged or any other compensation or be subject to injunction if the Company breaches this clause.
8.11 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.

9.

Security and Charge

9.1 In consideration of the Company agreeing to supply the Goods, 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).
9.2 The Customer indemnifies the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Company’s rights under this clause.
9.3 The Customer irrevocably appoints the Company and each director of the Company as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Customer’s behalf.

10.

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

10.1 The Customer must inspect the Goods on Delivery and must within seven (7) days of such time notify the Company in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quotation. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Company to inspect the Goods.
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 The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. However, the Customer acknowledges that the Company is under no liability for any defects in the Goods resulting from, or arising out of, the production of the same in accordance with information, designs and drawings provided, or approved, by the Customer.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Company makes no conditions, warranties or other representations under these terms and conditions, including, but not limited to, the quality or suitability of the Goods. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Customer is a consumer within the meaning of the CCA, the Company’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If the Company is required to replace the Goods under this clause or the CCA, but is unable to do so, the Company may refund any money the Customer has paid for the Goods.
10.7 If the Customer is not a consumer within the meaning of the CCA, the Company’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by the Company at the Company’s sole discretion;
(b) limited to any warranty to which the Company is entitled, if the Company did not manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 10.1; and
(b) the Company has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the 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, the Company 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 the Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of the Goods 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 the Company;
(e) fair wear and tear, any accident, or act of God.
10.10 Notwithstanding anything contained in this clause if the Company is required by a law to accept a return then the Company will only accept a return on the conditions imposed by that law.

11.

Intellectual Property

11.1 Where the Company has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Company.
11.2 The Customer warrants that all designs, specifications or instructions given to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Company against any action taken by a third party against the Company in respect of any such infringement.
11.3 The Customer agrees that the Company may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Company has created for the Customer.

12.

Default and Consequences of Default

12.1 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 the Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Customer owes the Company any money the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Company’s contract default fee, and bank dishonour fees).
12.3 Further to any other rights or remedies the Company may have under this agreement, if the Customer has made payment to the Company 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 the Company under this clause 12 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.
12.4 Without prejudice to any other remedies the Company may have:
(a) the Company shall be entitled to (without being liable in any way for any claim, damage, expense or cost arising therefrom) suspend or terminate the supply of Goods to the Customer (including cancelling all or any part of any order of the Customer which remains unfulfilled) and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
(i) at any time the Customer is in breach of any obligation under these terms and conditions;
(ii) any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to make a payment when it falls due;
(iii) the Customer 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
(iv) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
(b) If the Customer is in breach through any action under sub-clause (a):
(i) the right of the Customer to sell the Goods in the ordinary course of business, or otherwise, immediately terminates with the need for the Company to provide written notification; and
(ii) the Company may forthwith withdraw any credit facilities which may have been extended to the Customer, withhold any further deliveries of Goods (or performance of Services) under this agreement or, in respect of Goods already delivered, repossess the Goods in in accordance with sub-clause 7.3(e).

13.

Cancellation

13.1 The Company may cancel any contract to which these terms and conditions apply, or cancel Delivery at any time before the Goods are delivered, by giving written notice to the Customer. On giving such notice the Company shall repay to the Customer any money paid by the Customer for the Goods. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In addition to any other rights the Company may have against the Customer, and to the extent permitted by law, the Customer shall indemnify the Company for, and save it harmless from, any loss, damage or expense (whether direct or indirect, and including but not limited to any loss of profits) incurred by the Company should the Customer cancel any order (or part thereof) for the Goods, or breach these terms and conditions.
13.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced.

14.

Privacy Act 1988

14.1 The Customer agrees for the Company 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 the Company.
14.2 The Customer agrees that the Company 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 (2) years.
14.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit.
14.4 The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; 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 Goods.
14.5 The Company 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.
14.6 The information given to the CRB may include:
(a) personal information as outlined in 14.1 above;
(b) name of the credit provider and that the Company 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 the Company has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Company, 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).
14.7 The Customer shall have the right to request (by e-mail) from the Company:
(a) a copy of the information about the Customer retained by the Company and the right to request that the Company correct any incorrect information; and
(b) that the Company does not disclose any personal information about the Customer for the purpose of direct marketing.
14.8 The Company 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.
14.9 The Customer can make a privacy complaint by contacting the Company via e-mail. The Company 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 that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

15.

Unpaid Seller’s Rights

15.1 Where the Customer has left any item/s with the Company for repair, modification, exchange or for the Company to perform any other service in relation to the item/s and the Company has not received or been tendered the whole of any moneys owing to it by the Customer, the Company shall have, until all moneys owing to the Company are paid:
(a) a lien on the item/s; 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.
15.2 The lien of the Company shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Company having been obtained against the Customer.

16.

General

16.1 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’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.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which the Company has its principal place of business, and are subject to the jurisdiction of the Ipswich Court in that state.
16.3 Subject to clause 10, the Company shall be under no liability whatsoever to the Customer for any loss, injury or damage (including indirect and/or consequential loss and/or expense) suffered or caused as a result of, or arising out of, any breach of this agreement, or any act or omission, whether negligent or otherwise, by the Company, its servants or agents. Alternatively, the Company’s liability shall be limited to damages which under no circumstances shall exceed the Price. The Customer agrees to indemnify the Company against any claims made against the Company by any third party in respect of any such loss, injury or damage.
16.4 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 the Company nor to withhold payment of any invoice because part of that invoice is in dispute. However, if (for any reason) the Customer is owed any money by the Company, the Company may set off, and deduct from the money owed, any amounts payable by the Customer to the Company.
16.5 The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
16.6 The Customer agrees that the Company may amend these terms and conditions at any time. If the Company makes a change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Company to provide Goods to the Customer.
16.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action/riot/civil commotion, robbery, fire, flood, storm, or other event beyond the reasonable control of either party, and the Company:
(a) shall not be liable for any claims for non-fulfilment or late Delivery should actual Delivery (or any parts) be delayed in consequence of unforeseen events under this clause 16.7 and unforeseen breakdown of machinery (save where caused by improper maintenance or operation by untrained personnel), suspension of electricity or other relevant power supply adverse non-foreseeable weather conditions, action of government or port authority, delay of vessel, railroad embargoes, in ability to obtain transportation facilities or due to failure of an original equipment manufacturer to supply components by the due date; and
(b) shall be entitled (at its option) to terminate this agreement or extend the time for performance.
16.8 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.
16.9 A certificate signed by an officer of the Company stating the amount due and payable by the Customer under this (or any other) agreement shall be prima facie evidence thereof.
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