Terms & Conditions

The Fixed Group

TERMS & CONDITIONS

Unless otherwise agreed in writing with THE FIXED GROUP PTY LTD (ACN 085 243 698) (THE FIXED GROUP) its agents or assigns, that these Terms & Conditions apply to the sale of Equipment to the Customer by THE FIXED GROUP.

  1. DEFINITIONS

In the following Terms & Conditions of Sale (Terms):

(a)      Contract or Security Agreement means this contract for the sale of Equipment including supply of Labour or as otherwise as defined by the PPSA;

(b)      Charges means all monies payable by the Customer to THE FIXED GROUP in relation to the supply of Equipment;

(c)      Confirmation of Order means a written confirmation setting out a description of the Equipment, the Charges and any other necessary terms and which may include details of the Customer’s offer to purchase the Equipment;

(d)      Customer means the person, firm or corporation who acquire the Equipment from THE FIXED GROUP (jointly and severally if there is more than one), and their agents or assigns;

(e)      Equipment means the equipment, goods, consumables and any services including the supply of labour (as required):

(i)                any spare parts and supplies which subsequently are supplied under any warranty provided in relation to the Equipment; and

(ii)              the supply of inventory (as defined by the  PPSA);

(f)       Labour means the labour provided by THE FIXED GROUP to design, install, commission, service or repair any Equipment;

(g)      Manufacturer means the manufacturer of the Equipment or any part thereof, its agents and assigns;

(h)      Persons include corporations, partnerships, unincorporated associations and trusts.

(i)       PPSA means the Personal Property Securities Act 2009 (Cth), as amended from time to time;

(j)       Warranty Documentation means the printed form/card containing the terms of the manufacturer and/or its agents or assigns, warranty which is supplied with Equipment or is offered generally by the manufacturer to the purchase of like Equipment at the date of the Agreement, and includes any certificates of compliance issued by the Victorian Building Authority (VBA) or Energy Safe Victoria (ESV).

  1. GENERAL

2.1              These Terms apply to all agreements for the supply of Equipment and Labour by THE FIXED GROUP and are varied or excluded only where such variation or exclusion is in writing and signed by an authorised official of THE FIXED GROUP.

2.2              These Terms are binding on the Customer with respect to all Equipment and Labour ordered by it, Equipment and Labour supplied or agreed to be supplied by THE FIXED GROUP, the provision of credit by THE FIXED GROUP in relation to such Equipment and Labour, and each Contract between THE FIXED GROUP and the Customer.

2.3              Where the Customer has agreed to purchase the Equipment and Labour from THE FIXED GROUP, these Terms will be incorporated into every subsequent agreement for purchase (including all purchases of consumables by the Customer for use with the Equipment in so far as applicable) by the Customer from THE FIXED GROUP unless specifically varied or excluded by THE FIXED GROUP.

2.4              No brochure, catalogue, price list, quotation or other communication published or forwarded by THE FIXED GROUP to the Customer, whether in writing or not, will constitute anything other than an invitation from THE FIXED GROUP to the Customer.

2.5              A quotation does not constitute an offer to sell Equipment and Labour to the Customer. Any quotation provided by THE FIXED GROUP to the Customer for the proposed supply of Equipment and Labour is valid for 30 days unless otherwise stated.

2.6              Any purchase order (Purchase Order) placed by the Customer with THE FIXED GROUP constitutes only an offer to purchase the Equipment and Labour. Notwithstanding any prior communication between THE FIXED GROUP and the Customer, there will be no obligation by THE FIXED GROUP to accept an offer to purchase Equipment or Labour made by the Customer.

2.7              THE FIXED GROUP may make its acceptance of a Purchase Order conditional upon receiving a satisfactory credit assessment or deposit payment from the Customer

2.8              The Customer’s Purchase Order may be accepted either by issue to the Customer of a confirmation or order or  by delivery of the Equipment or Labour.

2.9              If there is any inconsistency between the Customer’s Purchase Order or other request and these Terms, these Terms prevail unless the variation is accepted in writing by THE FIXED GROUP.

2.10         THE FIXED GROUP will, prior to or upon supplying the Equipment and Labour to the Customer, provide the Customer with an invoice in respect of the Equipment and Labour.

2.11         No Contract or Security Agreement will exist between THE FIXED GROUP and the Customer until a Customer’s Purchase Order for Equipment and Labour has been accepted by THE FIXED GROUP.

2.12         If there is any variation to any of the information supplied by the Customer to THE FIXED GROUP (including as to the structure or nature of the Customer’s business) the Customer must notify THE FIXED GROUP in writing as soon as practicable.

2.13         Any terms and conditions specified by the Customer are expressly rejected and the Customer acknowledges that these Terms will govern all Contracts between the parties.

2.14         THE FIXED GROUP may vary these Terms from time to time.

2.15         Any Purchase Orders placed after the notice date will be deemed an acceptance of such varied Terms.

  1. PRICING & PAYMENT

3.1                The price for Equipment and Labour under a Contract is the price specified in the invoice.

3.2                THE FIXED GROUP may change the price for Equipment and Labour at any time and will endeavour to provide prior notice.

3.3                The prices specified for Equipment and Labour may at THE FIXED GROUP’s option be altered to reflect additional charges in effect at the time of delivery.

3.4                Any variations to the price as a consequence of currency fluctuations, GST, taxes, customs duty or other imposts, will be to the Customer’s account.

3.5                THE FIXED GROUP may vary the purchase price for the Equipment and Labour if:

(a)             the Customer requests any variation to the Contract; or

(b)             there are any changes in the costs incurred by THE FIXED GROUP in relation to the Equipment and Labour.

3.6                THE FIXED GROUP will be entitled to set off against any money owing to the Customer by amounts owed to THE FIXED GROUP.

  1. DELIVERY

4.1                Any times quoted for delivery are estimates only and THE FIXED GROUP will not be liable for any loss or damage suffered by the Customer or any third party for failure to deliver or for delay in delivery of Equipment. The Customer will not be relieved of any obligation to accept or pay for Equipment by reason of any delay in delivery.

4.2                Any date for supply or delivery of Equipment by THE FIXED GROUP specified in a Contract, invoice or written or oral representations is an estimate only and is not a contractual commitment.

4.3                Delivery by THE FIXED GROUP to the Customer will be conclusive evidence of the Customer’s acceptance of the Equipment delivered.

4.4                THE FIXED GROUP reserves the right to deliver Equipment by instalments and THE FIXED GROUP may invoice the Customer for the Equipment provided in instalments.

4.5                The Customer indemnifies THE FIXED GROUP against any loss or damage suffered by THE FIXED GROUP, its sub-contractors or employees as a result of delivery, except where excluded by law.

  1. FUNCTIONALITY AND PERFORMANCE

5.1              All information, specifications or other data provided by THE FIXED GROUP in relation to the Equipment (including those sourced from the Manufacturer) represent approximations only and should not be used for construction purposes.

5.2              THE FIXED GROUP cannot guarantee the accuracy or completeness of any of the information, specifications or data referred to in clause

5.1 above (Data), and will not be held liable for any loss incurred due to the Customer’s reliance on the Data.

5.3              All drawings and specifications that are expressed to be the property of THE FIXED GROUP will remain the sole property of THE FIXED GROUP and must not be copied or divulged to any third party without the prior consent of THE FIXED GROUP. Small deviations or slight variations from such information which do not substantially affect the functionality of the Equipment, will not entitle the Customer to either reject the Equipment upon delivery or make any claim in respect thereof.

5.4              Any information provided by THE FIXED GROUP in relation to the performance of Equipment represents only a guide as to the performance of the Equipment under standard industry operation conditions. Factors which may affect the performance may be obtained from THE FIXED GROUP on request.

5.5              THE FIXED GROUP reserves the right to make reasonable modifications of any kind to the Equipment prior to its delivery.

  1. RETURNS

6.1              If any Equipment is delivered to the Customer which does not comply with the Customer’s order, it will be deemed to have been accepted by the Customer unless notice of non- compliance is received by THE FIXED GROUP within five (5) days of delivery and in accordance with clause 15.

6.2              A restocking fee may be charged against cancelled or returned orders up to 20% of the total order at the discretion of THE FIXED GROUP.

6.3              In addition to re-stocking fee payable for any cancelled or returned order as outlined in 6.2 above, all charges incurred in the return and, if applicable, initial delivery of the Equipment in question will be payable by the Customer.

6.4              THE FIXED GROUP will not be liable for any shortages, damage or non- compliance with the specifications of the Contract.

6.5                The original invoice number and credit paperwork as authorised by THE FIXED GROUP and the Manufacturer must accompany  all Equipment if permitted to be returned to THE FIXED GROUP (refer 15).

6.6              Once the Equipment is installed, no returns or exchanges are permitted.

  1. ACCOUNT TERMS

7.1              The Customer will pay THE FIXED GROUP all charges within the time frame set out in the invoice, unless otherwise agreed in writing, without reduction or deferment on account of any claim, counterclaim or setoff, or alternatively, pay THE FIXED GROUP all charges on a COD basis (i.e. payment prior/upon receiving the Equipment).

7.2              The Customer acknowledges that time for payment to THE FIXED GROUP is of the essence. Timely payment of invoice may attract a reduction in cost of charge.

7.3              The Customer will (unless otherwise agreed in writing) pay all other charges such as duty and other related expenses.

7.4              The Customer agrees to pay for all Equipment delivered in accordance with the terms agreed and stated on the invoice.

7.5              Any credit extended to the Customer for Equipment sold will be made in accordance with the credit terms as agreed by THE FIXED GROUP at the time the Customer’s account is established or as subsequently altered by THE FIXED GROUP.

7.6              THE FIXED GROUP may withdraw the Customer’s credit facilities at any time or vary the Customer’s credit limit, without notice to the Customer.

7.7              In the event of THE FIXED GROUP instructing its solicitors to collect an overdue amount, all legal fees, collection charges and tracing agents fees as between solicitor and client will be borne by the Customer and all payments made will first be allocated towards such fees and charges thereafter to interest and finally to capital.

7.8              THE FIXED GROUP may allow the Customer to purchase and continue to purchase Equipment as long as the total of the Customer’s account does not exceed its pre-approved account limit.

7.9              The Customer must provide THE FIXED GROUP with satisfactory written trade references and/or a satisfactory trade or status report from a credit rating agency acceptable to THE FIXED GROUP if requested.

7.10         THE FIXED GROUP may require additional references/reports from time to time and additional information if the Customer applies to increase the Customer’s account limit.

7.11         The Customer acknowledges that THE FIXED GROUP may revoke any credit granted to the Customer at any time.

  1. EQUIPMENT WARRANTY & LIMITATION OF LIABILITY

8.1              The Customer is entitled to:

(a)             all the rights that by the Australian Consumer Law (ACL) cannot be lawfully excluded from the Agreement between THE FIXED GROUP and the Customer, but only to the extent these rights cannot be excluded;

(b)             in addition to the rights under clause 8.1(a), the warranties that are described and referred to in the Warranty Documentation (subject to the exclusions and limitations);

(c)              All implied warranties that are inconsistent with the Customer’s entitlement under clause 8.1(a) are to that extent excluded.

8.2              Unless otherwise stated in the Terms or any Warranty Documentation, THE FIXED GROUP is not liable to the Customer in any way arising under or in connection with the sale, use of, storage or any other dealings with the Equipment by the Customer or any third party.

8.3              THE FIXED GROUP is not liable to the Customer or any third party in respect of any indirect or consequential loss or damage suffered or incurred by the Customer or any third party except to the extent of any liability imposed by the ACL.

  1. DEFAULT

9.1              If the Customer defaults in payment by the due date of any amount payable to THE FIXED GROUP, then all money which would become payable by the Customer to THE FIXED GROUP at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and THE FIXED GROUP may, without prejudice to any of its other accrued or contingent rights:

(a)             charge the Customer interest at the annual rate of 3% above the Reserve Bank of Australia’s Cash Rate, calculated daily and compounded weekly from the due date until the date of payment in full;

(b)             charge the Customer for, and the Customer must indemnify THE FIXED GROUP from, all costs and expenses (including without limitation all legal costs and expenses, collection costs, dishonour fees and stamp duty) incurred by THE FIXED GROUP resulting from the default, or in taking action to enforce compliance with the Contract;

(c)              withhold for such period as THE FIXED GROUP thinks fit, any further deliveries of Equipment to the Customer; and

(d)             by written notice to the Customer, terminate any uncompleted Contract with the Customer.

9.2              This clause 9 may also be relied upon, at THE FIXED GROUP’s option, where the Customer becomes bankrupt or insolvent or enters into any scheme of arrangement or has a liquidator, administrator or similar functionary appointed in respect of its assets.

  1. TERMINATION

10.1         In addition to the rights of termination provided in the above clauses, THE FIXED GROUP may terminate the Agreement upon the occurrence of any of the following events:

(a)           failure by the Customer to perform any obligation of this Agreement where such failure is not rectified within thirty (30) days of notice from THE FIXED GROUP requesting rectification;

(b)           a receiver or receiver and manager of the Customer’s assets, income or business or any part thereof is appointed or a mortgagee goes into possession thereof;

(c)            the Customer fails to pay its debts as they fall due, ceases or threatens to cease to carry on business;

(d)           the Customer purports to assign its rights under this Agreement; or

(e)           any event that occurs outside the reasonable control of THE FIXED GROUP which in THE FIXED GROUP’s estimate makes it impracticable or impossible for THE FIXED GROUP to fulfil its obligations under this Agreement.

  1. PROPERTY AND RISK

11.1         The Equipment will be at the sole risk of the Customer as soon as it is delivered or deemed to be delivered.

11.2         The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties, arising out of the use or possession of  the Equipment.

11.3         Until THE FIXED GROUP receives full payment in cleared funds for all Equipment supplied by it to the Customer, as well as all other amounts owing to THE FIXED GROUP by the Customer:

(a)             property in and title to the Equipment remain vested in THE FIXED GROUP and will not pass to the Customer;

(b)             the Customer holds the Equipment as bailee for THE FIXED GROUP;

(c)              the Customer must store the Equipment separately from its own Equipment and retain THE FIXED GROUP’s labelling and packaging;

(d)             the Customer must hold the proceeds of sale of the Equipment on trust for THE FIXED GROUP; and

(e)             THE FIXED GROUP may, without notice, enter any premises where it suspects the Equipment may be located, and remove  it. The Customer irrevocably licenses THE FIXED GROUP to enter such premises and indemnifies THE FIXED GROUP from and against all costs, claims, demands or actions by any party arising from such action for this purpose.

  1. PERSONAL PROPERTY SECURITIES ACT

12.1         The Customer acknowledges and agrees that the following provisions will apply to these Terms as the accepted Security Agreement between THE FIXED GROUP and the Customer for the purposes of the PPSA.

12.2         The Customer acknowledges, agrees and grants to THE FIXED GROUP, a security interest in:

(a)             all Equipment and any proceeds previously supplied by THE FIXED GROUP to the Customer; and

(b)             all Equipment and any proceeds that will be supplied in the future by THE FIXED GROUP to the Customer.

12.3           This security interest secures all moneys owing by the Customer to THE FIXED GROUP under these Terms or otherwise.

12.4         The Customer acknowledges and agrees the security interest is a continuing and subsisting interest in the Equipment with priority over any registered or unregistered general (or other) security interest and any unsecured creditor.

12.5         The Customer acknowledges that the security interest over Equipment or their proceeds arising under these Terms as and where applicable will be a purchase money security interest (PMSI) and deemed to be inventory to the extent that it secures payment of amounts owing in relation to the Equipment.

12.6         The Customer will do everything reasonably required of it by THE FIXED GROUP to enable THE FIXED GROUP to register its security interests with the priority THE FIXED GROUP requires and to maintain those registrations including:

(a)             signing any documents and/or providing any information which THE FIXED GROUP may reasonably require to register a financing statement or a financing change statement in relation to a security interest, or

(b)             correcting a defect in a financing statement.

12.7         The security interests arising under this clause 12 will be perfected prior to, on delivery or within a time contemporaneous with the delivery of the Equipment.

12.8         Until the Equipment become a fixture (as defined by the PPSA), a security interest in the Equipment remains on foot and this clause 12 will apply.

12.9         THE FIXED GROUP does not need to give the Customer any notice under the PPSA (including notice of the financing statement or verification statement) unless required by the PPSA.

12.10    Any time the Customer makes a payment to THE FIXED GROUP, irrespective of whether the payment is made under or in connection with this Agreement, THE FIXED GROUP may apply that payment:

(a)             first to satisfy an obligation that is not secured;

(b)             second, to satisfy an obligation that is secured, but not by a PMSI;

(c)              third, to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI;

(d)             fourth, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source; or

(e)             despite the foregoing, any manner THE FIXED GROUP as the secured party sees fit.

12.11    For the avoidance of doubt and without prejudice to THE FIXED GROUP’s rights under the PPSA, the Customer:

(a)             may process the Equipment supplied by THE FIXED GROUP to the Customer and accession or commingle them with other property in which case THE FIXED GROUP will have a security interest in any processed, accession and commingled Equipment;

(b)             may sell the Equipment to its Customers and if it does so, then THE FIXED GROUP will have a security interest in the proceeds of sale; and

(c)              will, where and when applicable and instructed by THE FIXED GROUP, implement, maintain and comply in all material respects with, procedures for the perfection of security interests,including taking all steps under the PPSA to perfect continuously any such security interest.

12.12    If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interests created under these Terms, the Customer agrees that sections 95, 120, 121(4), 125, 128, 129, 130, 132, 134, 135, 142, 143 and 157 of the PPSA will not apply to the enforcement of those security interests.

12.13    The Customer agrees not to disclose to an ‘Interested person’ (as defined in section 275(9) of the PPSA) or any other person, any Information of the kind described in section 275(1) of the PPSA including these Terms as the Security Agreement between the Customer and THE FIXED GROUP.

12.14    The Customer agrees to keep and maintain all Equipment free of any charge, lien, or security interest except as created under these Terms and not otherwise to deal with Equipment in a way that will, or may, prejudice the rights of THE FIXED GROUP under these Terms or the PPSA.

12.15    The Customer irrevocably grants to THE FIXED GROUP the right to enter  any premises or property of the Customer without notice, and without being in any way liable to the Customer or any other person, if THE FIXED GROUP has cause to exercise any of its rights under the PPSA, and in particular under section 123, and the Customer agrees to indemnify THE FIXED GROUP against any such liability whatsoever.

12.16    The Customer’s right to possession of Equipment still owned by THE FIXED GROUP under these Terms will cease if:

(a)             the Customer being an individual, commits an act of bankruptcy;

(b)             the Customer fails to comply with any demand for payment issued by THE FIXED GROUP;

(c)              circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of the Customer’s assets, any proceedings are instituted for winding up, or the Customer enters into a Deed of Company Arrangement; or

(d)             the Customer ceases or threatens to cease conducting business in the normal manner or applies for deregistration or receives a deregistration notice; or

(e)             the Customer is in breach any of these Terms or is in default of any other agreement with THE FIXED GROUP.

12.17    The Customer agrees that THE FIXED GROUP is entitled to enter any premises where the Equipment supplied by THE FIXED GROUP are still unpaid for, repossess and sell such Equipment. The Customer agrees to indemnify and keep THE FIXED GROUP indemnified in respect of any claims, actions and costs that may arise against THE FIXED GROUP in relation to the removal, repossession and sale of the Equipment pursuant to these Terms including any claims brought by third parties.

12.18    The Customer agrees that repossession of the Equipment pursuant to the PPSA will only satisfy so much of the monies which may still be payable to THE FIXED GROUP by the Customer, and is equivalent to THE FIXED GROUP’s estimation of the market value of the Equipment as it is at the date of repossession. On repossession of the Equipment by THE FIXED GROUP, any rights the Customer may have will immediately extinguish.

12.19    Until any obligations owed to THE FIXED GROUP by the Customer are discharged in full, the Customer must not give THE FIXED GROUP a written demand or allow any other person to give THE FIXED GROUP a written demand requiring THE FIXED GROUP to register a financing change statement under the PPSA or enter into or allow any other person to enter into the PPSR, a financing change statement.

  1. INTELLECTUAL PROPERTY

Where THE FIXED GROUP has followed plans, drawings, designs, specifications and instructions being oral or written provided by the Customer, the Customer will indemnify THE FIXED GROUP against damages, costs and expenses in respect of which THE FIXED GROUP may become liable by following such plans, drawings, designs, specifications and instructions by the Customer.

  1. FORCE MAJEURE

14.1         THE FIXED GROUP will not be liable for any loss or damage suffered by the Customer due to any delay or any breach or default under this Agreement in circumstances where such delay, breach or default results from causes beyond THE FIXED GROUP’s reasonable control including but not limited to any breach or default under this Agreement by the Customer, compliance with the laws, regulations, orders, acts, instruction or priority requests of governments, acts of God, fires, flood, weather, strikes, lockouts, factory shutdowns or alterations, embargoes, wars, riots, delay or shortage in transportation or inability to obtain labour, manufacturing facilities, electricity, oil or other materials from THE FIXED GROUP’s or the manufacturer’s usual source.

14.2         Any delay resulting from such cause will immediately extend the date for the performance by THE FIXED GROUP of any obligation under this Agreement by the period of the delay in which event the Customer will take, if necessary, steps to secure payment for the Equipment.

14.3         Any indulgence, latitude or extension of time which THE FIXED GROUP may show towards the Customer in relation to any of the provisions of the Agreement or any other matter or thing relating thereto or arising therefrom will not in any way prejudice or interfere with THE FIXED GROUP’s rights under the Agreement and will not be claimed to constitute a waive thereof.

14.4         The Customer acknowledges that no oral terms or representations form part of this Agreement unless they have been reduced to writing prior to entering into the Agreement.

14.5         Any notice to be given to a party will be in writing and will be sent by post, email or fax to the address of that party as shown in the quotation, Purchase Order or confirmation of order or as subsequently notified by that party to the party giving the notice and will be deemed to have been given at the time it would have been received in the normal course of post and if otherwise given at the time it was actually received.

  1. CLAIMS PROCESSING

15.1         No claim will be accepted unless it is in compliance with the requirements set out in this clause 15.

15.2         If a Customer makes a claim in relation to the Equipment or Labour, it must be done so in the form and with such detail as

required by the THE FIXED GROUP. Any claim must be made within 5 working days of receipt of the Equipment.

15.3         Claims must be initiated by email only to THE FIXED GROUP Accounts Department.

15.4         The Equipment which is the subject of a claim, must not be returned to THE FIXED GROUP without prior agreement and written authorisation by THE FIXED GROUP.

15.5         Receipt of returned Equipment is done so in good faith conditional upon the following:

(a)             THE FIXED GROUP will not under any circumstances, accept claims for payments where a variation has been made by a Customer and modifications have not been approved  or for any back charges; and

(b)             THE FIXED GROUP may, pending the circumstances, and if solely due to an act or omission by THE FIXED GROUP, at its sole discretion and option, repair or replace the Equipment.

15.6         THE FIXED GROUP will not accept any claim by the Customer for any  reason where the Customer claims a defect or failure of the Equipment, including economic loss, consequential loss or any other form of loss whatsoever and this warranty will not apply, where:

(a)             equipment has not been paid in full and according to the terms of payment;

(b)             the defect or failure is due to or resulting from damage or misuse or noncompliance by the Customer in relation to a procedure specified by THE FIXED GROUP. Common misuse includes (but is not limited to):

(i)              the Equipment are subject to impact or sudden movement or continual relocation;

(ii)            the Equipment are used in a way that they are not designed for;

(iii)          the Equipment are subject to excessive vibration, heat or moisture;

(c)              the defect or failure is due to persons not technically competent to use the Equipment;

(d)             the defect or failure is due to the Equipment not being used for the purpose for which they were specified;

(e)             the defect or failure is caused by the Customer or a third party on behalf of the Customer attempting integration or interfacing of the Equipment with other Equipment;

(f)               the Customer or any third party has altered the Equipment in any way different to the condition in  which they were supplied or installed;

(g)             the defect or failure is due to environmental conditions of the Customer’s site causing deterioration; or

(h)             the defect is due to the Customer or its agent attempting modification or repair of the Equipment.

15.7         If the Customer does not comply with the above requirements, the Customer will be deemed to have  accepted the Equipment and THE FIXED GROUP will not incur any liability whatsoever in relation to the Equipment.

  1. DISPUTE RESOLUTION

16.1                        Prior to the institution of any legal proceedings, or any referral to arbitration, any dispute, controversy or claim arising out of or relating to this agreement or the breach, termination of invalidity of it will first be the subject of mediation administered by the Australian Commercial Disputes Centre Limited (ACDC).

16.2           In the event that the dispute, controversy or claim has not been resolved within twenty-eight (28) days after the appointment of a mediator (or such other period as agreed to in writing between parties), the dispute, controversy or claim, at the election of either party, may be submitted to arbitration, administered by ACDC. The arbitrator will not be the same person as the mediator and will be agreed between parties from a panel suggested by ACDC, or failing agreement, an arbitrator appointed by ACDC.

16.3           Any mediation or arbitration meetings and proceedings will be held in Melbourne, Victoria.

  1. MISCELLANEOUS

17.1         THE FIXED GROUP’s failure to enforce any of these Terms will not be construed as a waiver of any of THE FIXED GROUP’s rights.

17.2         If any of these Terms are unenforceable, it will be read down to be enforceable or, if it cannot be read down, the term will be severed from these Terms without affecting the enforceability of the remaining Terms.

17.3         A notice must be in writing and handed personally or sent by fax, email or prepaid mail to the addressee. Notices sent by mail are deemed to be received 5 days after posting.

17.4         Notices sent by fax or email are deemed received on confirmation of transmission.

17.5         Where applicable, to secure payment of the secured money and performance of the Customer’s obligations to THE FIXED GROUP, the Customer and Guarantors where applicable and agreed with THE FIXED GROUP, charge all of their legal and equitable interest (including as beneficial owner, both present and future) of whatsoever nature held in any and all real property in favour of THE FIXED GROUP.

17.6         Where the Customer and Guarantor(s) have requested that THE FIXED GROUP supply Equipment to the Customer and THE FIXED GROUP has agreed to do so in consideration of the guarantee and indemnity provided by the Guarantor(s):

(a)             the Guarantors jointly and severally, unconditionally and irrevocably guarantee to THE FIXED GROUP the due  and punctual payment by the Customer of the secured money and the performance of all other obligations of the Customer to THE FIXED GROUP under these Terms;

(b)             the Guarantors jointly and severally, unconditionally and irrevocably indemnify THE FIXED GROUP against, and must pay THE FIXED GROUP on demand the amount of, all liability, loss or damage arising directly or indirectly from, and any costs, charges or expenses incurred in connection with, a failure by the Customer to pay the secured money when due, or any other breach of an obligation owed  by the Customer to THE FIXED GROUP under these Terms; and

(c)              any guarantee and indemnity is continuing and is not discharged by any one payment.

17.7         Where a Director/Partner or proprietor of a Customer uses or authorises the use of his or her signature in whatever form, including approving an authorised person (including any employee) to apply his or her signature to the Credit Application or any other agreement, or leaving an authorised

person with his or her email address and password in order to provide authorisation to THE FIXED GROUP, the Director/Partner or proprietor acknowledges and agrees that he/she:

(a)             has full knowledge of the Terms and all material circumstances related to or as stated in the Credit Application or any other agreement between the parties;

(b)             has provided the requisite authority in whatever form for the use of his or her signature for the express purposes of agreement between the parties;

(c)              acknowledges that THE FIXED GROUP has relied upon that signature as having been duly signed with full and complete authority (express, implied or ostensible) by the director/partner or proprietor;

(d)             understands the nature and effect of the Credit Application, these Terms and any other agreement between the parties; and

(e)             the Customer agrees that THE FIXED GROUP may treat any document on which an electronic signature of the Customer appears as having been duly signed and executed by the Customer, and that the Customer has full knowledge of the obligations contained within this Agreement.

17.8         The rights and obligations of THE FIXED GROUP and the Customer under these Terms will be binding on, and will be of benefit to, each of the party’s successors, permitted assigns, heirs, executors and administrators.

(a)             Clauses 17.11-17.14 apply if the Customer is a Trustee and whether or not THE FIXED GROUP has notice of the Trust.

(b)             Where the Customer comprises 2 or more persons and any of those persons is a Trustee this clause applies to such Trustee.

(c)              The Customer agrees that even though it enters into these Terms as Trustee of the Trust, the Customer will also be liable personally for the performance and observance of every covenant to be observed and performed by the Customer expressed or implied in these Terms.

17.9         The Customer warrants that it has complete, valid and unfettered power to enter into these Terms pursuant to the provisions of the Trust and warrants that the Customer’s entry into these Terms is in the due administration of the Trust.

17.10    The Customer covenants it has an unrestricted and unlimited right of indemnity against the property of the Trust.

17.11    The Customer will not, without THE FIXED GROUP’s prior written consent:

(a)             resign or be removed as Trustee of the Trust or appoint or allow the appointment of a new or additional Trustee of the Trust;

(b)             amend or revoke any of the terms of the Trust;

(c)              vest or distribute the property of the Trust or advance or distribute any capital of the Trust to a beneficiary or resettle any of the property of the Trust;

(d)             permit a beneficiary to have the use, occupation, employment or possession of the property of the Trust;

(e)             do or permit or omit to do an act or thing in breach of the Trust or which would permit the Trustee to be removed as Trustee of the Trust;

(f)               exercise or permit or allow to be exercised a power to change the vesting date of the Trust or provide for an early determination of the Trust;

(g)             lend any money, give any guarantee or incur any debt other than in the ordinary course of business of the Trust; or

(h)             pay any of the income of the Trust to any beneficiary of the Trust if such payment will prejudice or affect the Customer’s ability to pay all moneys due to THE FIXED GROUP.

17.12      The law of Victoria from time to time governs these Terms.

17.13      To the extent of any discrepancy between these Terms and any third party (including the Customer’s own) Terms, these Terms prevail.

17.14      These Terms constitute the entire Agreement (including Security Agreement) between the parties and no amendment or variation will be of any force and effect unless in writing and signed by both THE FIXED GROUP and the Customer.