Aurablue Electric – Terms & Conditions of Trade
1.1 “Aurablue Electric” means Aurablue Electric Pty Ltd T/A Aurablue Electric & Austest Electrical, its successors and assigns or any person acting on behalf of and with the authority of Aurablue Electric Pty Ltd T/A Aurablue Electric & Austest Electrical.
1.2 “Customer” means the person/s buying the Materials (and/or hiring Equipment) 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 “Materials” means all Materials or Works supplied by Aurablue Electric to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Materials’ or ‘Works’ shall be interchangeable for the other).
1.4 “Equipment” means all Equipment including any accessories supplied on hire by Aurablue Electric to the Customer (and Should be works and where the context so permits shall include any supply of Works). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Aurablue Electric to the Customer.
1.5 “Price” means the Price payable for the Materials and/or Equipment hire as agreed between Aurablue Electric and the Customer in accordance with clause 4 below.
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 or accepts delivery of the Materials/Equipment.
2.2 These terms and conditions may only be amended with Aurablue Electric’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Aurablue Electric.
3. Change in Control
3.1 The Customer shall give Aurablue Electric 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 Aurablue Electric as a result of the Customer’s failure to comply with this clause.
4.1 At Aurablue Electric’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Aurablue Electric to the Customer; or
(b) Aurablue Electric’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.
4.2 Aurablue Electric reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works; or
(d) in the event of increases to Aurablue Electric in the cost of labour or materials which are beyond Aurablue Electric’s control.
4.3 At Aurablue Electric’s sole discretion a non-refundable deposit may be required.
4.4 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two (2%) percent of the Price), or by any other method as agreed to between the Customer and Aurablue Electric.
4.5 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Aurablue Electric an amount equal to any GST Aurablue Electric must pay for any supply by Aurablue Electric under this or any other agreement for the sale of the Materials/hire of the Equipment. 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. Invoicing and Payment Terms
5.1 Terms of payment are strictly COD from the date of invoice, unless otherwise mutually agreed in writing.
5.2 In the event the Customer’s account becomes overdue:
(a) Aurablue Electric reserves the right to charge interest in accordance with Penalty Interest Rates Act 1983;
(b) and remains unpaid after sixty (60) days, Aurablue Electric reserves the right to charge a late payment account keeping fee of thirty ($30.00), excluding GST, and such fee shall be charged every thirty (30) days thereafter until the account is paid.
(c) interest of one percent (1%) per month will be charged to the Customer’s account, calculated from the date payment was due.
(d) all costs and disbursements incurred by Aurablue Electric in recovering the debt (including, but not limited to, internal administration fees, legal costs on a solicitor and own Customer basis, Aurablue Electric’s contract default fee, and bank dishonour fees) shall be added to the Customer’s account.
6. Delivery of Materials/Equipment
6.1 Delivery (“Delivery”) of the Materials/Equipment is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Materials/Equipment at Aurablue Electric’s address; or
(b) Aurablue Electric (or Aurablue Electric’s nominated carrier) delivers the Materials/Equipment to the Customer’s nominated address even if the Customer is not present at the address.
6.2 At Aurablue Electric’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
6.3 The Customer must take delivery by receipt or collection of the Materials/Equipment whenever either is tendered for delivery. In the event that the Customer is unable to take delivery of the Materials/Equipment as arranged then Aurablue Electric shall be entitled to charge a reasonable fee for redelivery of the Materials/Equipment and/or the storage of the Materials.
6.4 Aurablue Electric may deliver the Materials/Equipment 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 Aurablue Electric to the Customer is an estimate only. The Customer must still accept delivery of the Materials/Equipment even if late and Aurablue Electric will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
7.1 Risk of damage to or loss of the Materials passes to the Customer on Delivery and the Customer must insure the Materials on or before Delivery.
7.2 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Customer, Aurablue Electric is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by Aurablue Electric is sufficient evidence of Aurablue Electric’s rights to receive the insurance proceeds without the need for any person dealing with Aurablue Electric to make further enquiries.
7.3 If the Customer requests Aurablue Electric to leave Materials outside Aurablue Electric’s premises for collection or to deliver the Materials to an unattended location then such Materials shall be left at the Customer’s sole risk.
7.4 Where the Customer has supplied materials for Aurablue Electric to complete the Works, the Customer acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Contractor shall not be responsible for any defects in the Works, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
8.1 The Customer shall ensure that Aurablue Electric has clear and free access to the work site at all times to enable them to undertake the Works. The Aurablue Electric shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Aurablue Electric.
9. Underground Locations
9.1 Prior to Aurablue Electric commencing any work the Customer must advise Aurablue Electric of the precise location of all underground Works on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other Works that may be on site.
9.2 Whilst Aurablue Electric will take all care to avoid damage to any underground Works the Customer agrees to indemnify Aurablue Electric in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to Works not precisely located and notified as per clause 9.1.
10.1 The Customer warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that the Contractor, its employees or the Contractor’s reasonably form the opinion that the Customer’s premises is not safe for the installation of Materials to proceed then the Contractor shall be entitled to delay installation of the Materials (in accordance with the provisions of clause 5.4 above) until the Contractor is satisfied that it is safe for the installation to proceed.
11. Compliance with Laws
11.1 Both the Customer and the Contractor agree that they will at all times ensure that they comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including occupational health and safety laws relating to building/construction sites, and any other relevant safety standards or legislation, particularly those in relation to Asbestos/Hazardous materials and the safe removal and disposal of the same.
11.2 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
11.3 If during the course of installation when the Works are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by the Contractor, then the Contractor shall notify the Customer immediately. The power if isolated will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations 2002. The Customer accepts and agrees that any costs associated with the rectification Works including any Materials and labour shall be to the Customer’s account.
12. Title To Materials
12.1 Aurablue Electric and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid Aurablue Electric all amounts owing to Aurablue Electric; and
(b) the Customer has met all of its other obligations to Aurablue Electric.
12.2 Receipt by Aurablue Electric 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.
12.3 It is further agreed that:
(a) until ownership of the Materials passes to the Customer in accordance with clause 12.1 that the Customer is only a bailee of the Materials and must return the Materials to Aurablue Electric on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for Aurablue Electric and must pay to Aurablue Electric the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for Aurablue Electric and must pay or deliver the proceeds to Aurablue Electric on demand.
(d) the Customer should not convert or process the Materials or intermix them with other Materials but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Aurablue Electric and must sell, dispose of or return the resulting product to Aurablue Electric as it so directs.
(e) the Customer irrevocably authorises Aurablue Electric to enter any premises where Aurablue Electric believes the Materials are kept and recover possession of the Materials.
(f) Aurablue Electric may recover possession of any Materials in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Aurablue Electric.
(h) Aurablue Electric may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials/Equipment that has previously been supplied and that will be supplied in the future by Aurablue Electric to the Customer.
13.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Aurablue Electric may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, Aurablue Electric 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 Materials/Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Aurablue Electric;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials/Equipment in favour of a third party without the prior written consent of Aurablue Electric;
(e) immediately advise Aurablue Electric of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.
13.4 Aurablue Electric 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.
13.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by Aurablue Electric, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Customer must unconditionally ratify any actions taken by Aurablue Electric under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of Aurablue Electric agreeing to supply the Materials/Equipment, 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).
14.2 The Customer indemnifies Aurablue Electric from and against all Aurablue Electric’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising Aurablue Electric’s rights under this clause.
14.3 The Customer irrevocably appoints Aurablue Electric and each director of Aurablue Electric as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Customer must inspect the Materials/Equipment on delivery and must within seven (7) days of delivery notify Aurablue Electric in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Materials/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Aurablue Electric to inspect the Materials/Equipment.
15.2 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).
15.3 Aurablue Electric acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Aurablue Electric makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Equipment. Aurablue Electric’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Customer is a consumer within the meaning of the CCA, Aurablue Electric’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If Aurablue Electric is required to replace the Materials under this clause or the CCA, but is unable to do so, Aurablue Electric may refund any money the Customer has paid for the Materials.
15.7 If the Customer is not a consumer within the meaning of the CCA, Aurablue Electric’s liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by Aurablue Electric at Aurablue Electric’s sole discretion;
(b) limited to any warranty to which Aurablue Electric is entitled, if Aurablue Electric did not manufacture the Materials;
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 15.1; and
(b) Aurablue Electric has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, Aurablue Electric shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Materials/Equipment;
(b) the Customer using the Materials/Equipment for any purpose other than that for which they were designed;
(c) the Customer continuing the use of the Materials/Equipment 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 Aurablue Electric;
(e) Fair wear and tear, any accident, or act of God.
15.10 In the case of second hand Materials, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the
second hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Aurablue Electric as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that Aurablue Electric has agreed to provide the Customer with the second hand Materials and calculated the Price of the second hand Materials in reliance of this clause 15.10.
15.11 Aurablue Electric may in its absolute discretion accept non-defective Materials for return in which case Aurablue Electric may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Materials plus any freight costs.
15.12 Notwithstanding anything contained in this clause if Aurablue Electric is required by a law to accept a return then Aurablue Electric will only accept a return on the conditions imposed by that law.
16. Intellectual Property
16.1 Where Aurablue Electric has designed, drawn or developed Materials/Equipment for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Aurablue Electric.
16.2 The Customer warrants that all designs, specifications or instructions given to Aurablue Electric will not cause Aurablue Electric to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Aurablue Electric against any action taken by a third party against Aurablue Electric in respect of any such infringement.
16.3 The Customer agrees that Aurablue Electric may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Materials which Aurablue Electric has created for the Customer.
17. Default and Consequences of Default
17.1 Without prejudice to any other remedies Aurablue Electric may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Aurablue Electric may suspend or terminate the supply of Materials/Equipment to the Customer. Aurablue Electric will not be liable to the Customer for any loss or damage the Customer suffers because Aurablue Electric has exercised its rights under this clause.
17.2 Without prejudice to Aurablue Electric’s other remedies at law Aurablue Electric shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Aurablue Electric shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Aurablue Electric becomes overdue, or in Aurablue Electric’s opinion the Customer will be unable to make a payment when it falls due;
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
18.1 Aurablue Electric may cancel any contract to which these terms and conditions apply or cancel delivery of Materials/Equipment at any time before the Materials/Equipment are due to be delivered by giving written notice to the Customer. On giving such notice Aurablue Electric shall repay to the Customer any money paid by the Customer for the Materials/Equipment. Aurablue Electric shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 In the event that the Customer cancels delivery of the Materials/Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Aurablue Electric as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.3 Cancellation of orders for Materials/Equipment made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19. Privacy Act 1988
19.1 The Customer agrees for Aurablue Electric to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Aurablue Electric.
19.2 The Customer agrees that Aurablue Electric may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency 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.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
19.3 The Customer consents to Aurablue Electric being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
19.4 The Customer agrees that personal credit information provided may be used and retained by Aurablue Electric for the following purposes (and for other purposes as shall be agreed between the Customer and Aurablue Electric or required by law from time to time):
(a) the provision of Materials/Equipment; and/or
(b) the marketing of Materials/Equipment by Aurablue Electric, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Materials/Equipment; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Materials/Equipment.
19.5 Aurablue Electric may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
19.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that Aurablue Electric is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Aurablue Electric, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by Aurablue Electric has been paid or otherwise discharged.
20. Unpaid Seller’s Rights
20.1 Where the Customer has left any item with Aurablue Electric for repair, modification, exchange or for Aurablue Electric to perform any other service in relation to the item and Aurablue Electric has not received or been tendered the whole of any moneys owing to it by the Customer, Aurablue Electric shall have, until all moneys owing to Aurablue Electric are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected Materials.
20.2 The lien of Aurablue Electric shall continue despite the commencement of proceedings, or judgment for any moneys owing to Aurablue Electric having been obtained against the Customer.
22. Equipment Hire
22.1 Equipment shall at all times remain the property of Aurablue Electric and is returnable on demand by Aurablue Electric. In the event that Equipment is not returned to Aurablue Electric in the condition in which it was delivered Aurablue Electric retains the right to charge the Customer the full cost of repairing the Equipment. In the event that Equipment is not returned at all Aurablue Electric shall have right to charge the Customer the full cost of replacing the Equipment.
22.2 The Customer shall;
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Aurablue Electric to the Customer.
22.3 The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self-insure, Aurablue Electric’s interest in the Equipment and agrees to indemnify Aurablue Electric against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
23.1 The failure by Aurablue Electric to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Aurablue Electric’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.
23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which Aurablue Electric has its principal place of business, and are subject to the jurisdiction of the Newcastle Court in New South Wales.
23.3 Subject to clause 15 Aurablue Electric shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Aurablue Electric of these terms and conditions (alternatively Aurablue Electric’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Materials/Equipment hire).
23.4 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 Aurablue Electric nor to withhold payment of any invoice because part of that invoice is in dispute.
23.5 Aurablue Electric may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
23.6 The Customer agrees that Aurablue Electric may amend these terms and conditions at any time. If Aurablue Electric makes a change to these terms and conditions, then that change will take effect from the date on which Aurablue Electric notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Aurablue Electric to provide Materials/Equipment to the Customer.
23.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
23.8 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.